Spousal Support 101 – What You Should Know
If you are getting separated or divorced, it is important not to stress yourself. Instead, you will want to learn about your rights and obligations from your divorce lawyer in Winnipeg, including the payment of spousal support. Also known as alimony or maintenance, spousal support is money paid from the higher income partner to the other after a separation or divorce; it is intended to try apportioning the family income in a fair way between the spouses. Spousal support may be compensatory (for what one party gave up in the marriage) and/or based on need.
The Spousal Support Advisory Guidelines
Spousal support cases in Canada are often considered within the scope of the Spousal Support Advisory Guidelines (SSAGs). These guidelines are not legislation and are not binding, but they are often used by divorce lawyers in negotiations by and judges in arriving at what is fair in a particular situation.
How is Spousal Support Determined?
There are many factors that determine whether the payment of spousal support is warranted and, if so, how much should be paid. Such factors depend on the specific circumstances of the marriage, including:
- The length of time the parties cohabitated as a couple (including before marriage);
- The parties’ age and health;
- The parties’ incomes, assets, standard of living, and ability to be self-sufficient;
- The roles each spouse performed during the marriage (for example, if one spouse was the primary earner, and the other the primary caregiver for their children or if one spouse worked to support the unit so the other spouse could attend school);
- Any order, agreement or arrangement relating to support of either spouse;
Overall, what is pertinent is the impact of the marriage and the divorce on the parties’ financial circumstances to determining the amount of support and how long the payments must be paid. According to the Divorce Act, the judge can also order periodic payments or a lump sum amount.
When Does Spousal Support Not Apply?
Spousal support may not be warranted in several situations. For example, where the parties are young still, the length of marriage was short, the parties’ income was similar during the marriage, or neither party was financially dependent on the other, spousal support may not be ordered.
It is also noteworthy that the Canadian system of divorce is “no fault”. This means that conduct of either spouse (e.g., a situation of adultery or abuse) is irrelevant to the divorce process, and will not affect what types of support a spouse is entitled to. If you suffered damages (e.g., you were unable to work, you incurred out of pocket expenses) relating to the conduct of your partner’s behaviour during the marriage, you may be able pursue a civil action against your former spouse. This is best determined by your divorce lawyer in Winnipeg.
What Happens When There Are Material Changes?
A material change in financial matters is a common reason to request a change in spousal support. The result is often referred to as a “review order”.
Kehler v. Kehler, 2017 MBQB 62 (CanLII) is an example where the payor of support, Mr. Kehler, went to court to vary the original agreement he made with recipient, Ms. Kehler. Ms. Kehler had been the primary caregiver for the couple’s children and had relied almost exclusively Mr. Kehler’s income during their 29-year marriage. As such, the agreement was that Mr. Kehler would pay spousal support to Ms. Kehler in the amount of 35.1% of Mr. Kehler’s yearly income. This spousal support agreement was constructed with the earning potential of Mr. Kehler in mind.
The primary issue at stake was whether spousal support could be varied because of the voluntary retirement of the paying spouse (Mr. Kehler). The court was required to determine if the voluntary retirement of the paying spouse was reasonable and whether this represented a material change in circumstance for the paying spouse.
The voluntary retirement of the paying spouse was found to be reasonable, due to Mr. Kehler’s age (60 at the time) and number of years he had been employed (42 years). Mr. Kehler had several supplementary income sources, including a pension from his former employer, which left his yearly earnings after retirement at approximately $82,000 per year. Despite a substantial reduction in yearly income after retirement, Mr. Kehler was still making a sizable annual income of $82,000, which was greater than his income during their initial spousal support agreement. The court found that Mr. Kehler was able, and therefore, required to continue to honour his spousal support obligation to his former wife despite his retirement.
This case demonstrates how spousal support agreements can be revisited in circumstances where financial standing changes. In fact, most spousal support agreements entail a review clause, where support can be re-evaluated after a certain date.
When Does Spousal Support End?
Spousal support agreements are not universal, and may be modified with time and changes in circumstances, which depend on the conditions of each case. While there is a considerable amount of judicial discretion in spousal support cases, courts are less likely to order an end date for long-term marriages (e.g., 20 years+) or where children are involved.
Consider the case of Hill v. Hill, 2012 MBQB 76 (CanLII). Mr. Hill was initially ordered to pay spousal support to Ms. Hill, following the end of their 21-year marriage. After a considerable change in financial circumstances, Mr. Hill petitioned to end his obligation to pay spousal support because he lost his job and presented medical evidence indicating that he was no longer able to work. As a result, Mr. Hill’s obligation to pay spousal support was ended.
The following year, Ms. Hill petitioned the court to reinstate her claim to spousal support as Mr. Hill had found a job which greatly improved his financial circumstances. When evidence was considered critically, it appeared that Mr. Hill had deliberately misrepresented his employment and earnings to try end his spousal support payments. Eventually, Mr. Hill was ordered to pay spousal support – both retroactively for the months when spousal support had previously been terminated, and continually, until further notice from the court.
This case is a good illustration of how spousal support can vary with the needs and obligations that each party has.
Contact Cassidy Ramsay – Divorce Lawyers in Winnipeg
When you need a divorce lawyer in Winnipeg, contact Cassidy Ramsay. We can represent you in your separation or divorce negotiations and try to resolve your separation agreement collaboratively. Hiring a divorce lawyer can help to take the emotions out of the discussions and help you to obtain fair agreement. Contact us at 204-943-7454 today.