Spousal Support Slideshare Presentation

 

SPOUSAL SUPPORT

Support is a creature of Statue / must examine the FLA and Divorce Act support may be for married or unmarried spouses a married spouse can claim support under the Divorce Act and FLA (if no divorce claimed – may seek support but not a Divorce) an unmarried spouse can claim support under the FLA

 

• s.15(2) 
• Divorce Act – REVIEW – ct can order spousal support
• s.30 FLA – REVIEW – rt to support

 

• s.1(1) – defines spouse – live together for 3 yrs or have a kid (CL)
• the law wrt support is the same whether or not the person is married or not married

 

• s.15.2(4) – DIVORCE ACT –FACTORS
• factors taken into consideration by court in awarding support

 

• s.33(9) – FLA – FACTORS TO CONSIDER
• factors taken into consideration by a court in awarding support/ items listed could also apply to a support matter under the Divorce Act
• difference is wrt conduct under FLA (s.33 (10))/ no similar provision under the Divorce Act

 

• s.15.2(6) – Divorce Act – OBJECTVES OF DIVORCE ORDR
• sets out the objectives of any support Order
• s. 33(8) – FLA – set out objectives of any Order under the FLA

 

• NEED AND MEANS
• s.30 of the FLA – a spouse has an obligation to provide support in accordance with need and ability to pay

 

• s.15.2(1)(4) – Divorce Act – also deal with means and needs
• basis of support is need and the amount is based on the ability to pay / at one time the courts wanted the parties to divide the property and some support may be ordered (for a limited time – retrain etc.) – then the SCC decisions changed the way support was approached

 

• Moge v. Moge / Bracklow v. Bracklow / Hickey v. Hickey
• although the cases were decided under the Divorce Act, the same principles also apply under the FLA
• Moge – shift away from clean break theory/ must look at all objectives

 

• Bracklow – SCC established the framework for determining spousal support
• Recognized contractual (bc of a marriage or separation agreement), compensatory (degree of contribution to the marriage, sacrifice ) and non-compensatory bases for support (mutual obligation bc marriage – if disabled, will have to support)

 

• Spousal Support Advisory Guidelines
• –SSAG – developed by professor Rogerson and Thompson with the assistance of the dept of Justice Canada. Released in 2008.
• purpose was to bring certainty and predictability to the determination of spousal support / similar to guidelines-

 

• SSAG is not legislated by the gov/ advisory only
• SSAG does not deal with entitlement/ only deals with a formula to be applied for the amount and duration of spousal support once entitlement is determined

 

• low / mid and high range – amount and duration
• stength of compensatory claim, recipient needs, age, number of children, needs and ability to pay of payor, property division,
• COA in Fisher – endorsed the use of the guidelines

 

• NEW RELATIONSHIP
• bf support would end when a spouse entered a new relationship
• now just bc someone enters a new relationship does not mean that support terminates

 

• LIMITATION
• no limitation wrt support claim under Divorce act or FLA

 

• KINDS OF SUPPORT
• Kinds of support – periodic support (taxable/deductible – must be pursuant to Order or Agrement), lump sum (not taxable or deductible), payments to third parties

 

• DURATION
• Duration – interim (temporary), permanent (at trial – indefinite duration – usually traditional marriage – subject to review or variation), limited term (time limited – usually only if short duration – not frequent

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