Pearce DucharmeFamily Law
Pearce DucharmeSpousal support arises pursuant to court order, separation agreement, marriage contract or cohabitation agreement. While parties in a Divorce action have a duty to become and remain self-supporting, this is not always possible. In such a case, the parties may agree that the party with the higher income pay spousal support to the other person. The court may order it spousal support in common law relationships in appropriate situations. Before Spousal Support will be ordered the person seeking it must satisfy theses conditions
1. The parties have been married, orSpousal support is a financial calculation that attempts to assess how much a spouse has been penalized or suffered financially from the relationship. It may be summarized as 'need and ability to pay'. Each party's financial situation is relevant, the length of cohabitation is relevant, each spouse's earning ability and the lifestyle during the marriage is relevant.
Where a person earns less than $20,000.00 per year, spousal support is not usually ordered. Most family law lawyers have software to calculate spousal support.
Changing Spousal Support? As noted, spousal support arises pursuant to court order, separation agreement, marriage contract or cohabitation agreement. The terms of the order, agreement or contract affect your ability to have the issue of spousal support revisited.
There are three situations in which it is difficult to change spousal support. #1. Waiver: If there is a waiver of spousal support in the order, agreement or contract, it will be difficult to vary spousal support. #2. Lump Sum Spousal Support: If there was lump sum spousal support payable in the order, agreement or contract, it will be difficult to change spousal support. #3. Court Dismissal: If a court has dismissed your claim for spousal support it will be tough to change spousal support.
So when can you change spousal support?
If the payments of spousal support are periodic, say monthly, the amount can often be varied when there is a “material change in circumstance”. The Supreme Court of Canada in the Miglin case ruled that the terms of a separation agreement can be reviewed, and altered by a court, in certain circumstances. The spousal support provisions of s. 15.2 of the Divorce Act direct a court to consider: "(4)….the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relation to support of either spouse. (5) …. the court shall not take into consideration any misconduct of a spouse in relation to a marriage.
S. 15.2(6) sets out the objectives of a spousal support order: "...An order … should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practical, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The court in Miglin pointed out that the above provisions in themselves could be in conflict, suggesting that Parliament intended vest 'significant discretion' to a court regarding spousal support. Miglin sets out a two-step process for revisiting spousal support in a separation agreement. First, the circumstances surrounding the making an execution of the agreement should be examined. Is there any reason to discount it, such as oppression or perhaps failure to make proper financial disclosure? If there was a 'systemic imbalance' between the parties, did professional assistance negated that imbalance? Did the agreement substantially comply with the Act? At the second stage the court must also consider whether the agreement still reflects the original intentions of the parties and whether the agreement is still in substantial compliance with the Act. After the above considerations the court may increase support, decrease support or leave it be.