When spouses separate, there is a continued obligation to support a spouse financially in accordance with their need. The Family Law Act and the Divorce Act deal with spousal support and the court may order one spouse to pay support to another.
In the case of Bracklow v Bracklow the Supreme Court stated that a spouse who needs support, but who has not been handicapped by the marriage, may still be entitled to support if the other spouse has the ability to pay. This has resulted in spousal support falling into one or both of the following:
Compensatory claims: claims for spousal support which are based on the recipient spouse's economic loss or disadvantage because of the marriage.
Non-compensatory claims: claims for spousal support based on need.
Currently there are no legislated guidelines to determine the amount of spousal support, however the federal government launched a Spousal Support Project in 2001 which created the informal Spousal Support Guidelines that are used today. The guidelines contain two basic formulas to assist with determining spousal support: the without child support formula and the with child support formula.
How to Secure Spousal Support
Spousal support can be arranged through a separation agreement, and enforced through the courts. Section 15.2(1) of the Divorce Act states that the court has power to make an order 'to secure or pay, or to secure and pay'. The court may therefore order a spouse to make support payments periodically and to post a form of security in the event that they default.
Can a Spousal Support Order be Changed?
A spousal support order can be varied under the Divorce Act and Family Law Act if there has been a change of circumstances of one or both of the parties. The Family Law Act under section 37 states that the court must be satisfied that here has been 'a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available.' Loss of employment or financial disclosure that was not previously disclosed may qualify as a material change and therefore a variation can be sought.
If you require legal assistance in receiving, enforcing or varying spousal support please call our office to set up a consultation: 416-924-5969.