Family Law Principles that we can learn from Thompson v. Thompson 2013 ONSC 5500 (Spousal Support)
LEGAL PRINCIPLES RELATING TO SPOUSAL SUPPORT
Sections 15.2(1) and (2) of the Divorce Act, the court has jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable. The determination of what is reasonable takes into account various factors such as the length of time the spouses cohabited, the functions performed by each spouse during cohabitation, and any order, agreement or arrangements relating to support of either spouse.
The Divorce Act also explicitly states that the misconduct of a spouse in relation to the marriage is not a relevant consideration in a spousal support proceeding under the Act. This means that the actions of the spouses during the marriage, unless they have financial implications, do not influence the determination of spousal support.
There may be situations where the court is considering claims for both spousal support and child support. In such cases, if there is concern regarding a party’s ability to pay both at the appropriate levels, section 15.3 of the Act directs the court to give priority to child support in determining the application. This prioritization underscores the importance placed on ensuring the welfare and wellbeing of children in these proceedings.
The court’s duty to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act.
As the Supreme Court of Canada emphasized in Moge v. Moge, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown. This means that the focus of the analysis is on “the effect of the marriage in either impairing or improving each party’s economic prospects”. The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.
In terms of specifics, the “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life. A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits.
The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation.
Statutory Objectives: Section 15.2(6) of the Divorce Act
The Canadian law, under Section 15.2(6) of the Divorce Act, outlines the objectives of a spousal support order. These are designed to ensure fairness and equity in the aftermath of a marriage breakdown. The objectives are fourfold:
To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. This takes into account the financial implications, both positive and negative, that have arisen as a result of the marriage or its subsequent dissolution.
To 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. This serves to fairly distribute the financial responsibilities associated with child care that go beyond the direct support of the child.
To relieve any economic hardship of the spouses arising from the breakdown of the marriage. This considers the financial strain that the breakdown of the marriage may have caused, and aims to alleviate it.
To promote the economic self-sufficiency of each spouse within a reasonable period, in so far as practicable. This objective encourages both parties to strive towards financial independence post-separation.
The Supreme Court of Canada in Moge and Bracklow has held that all of these statutory objectives must be considered in each case. No single objective is paramount, and trial judges have the discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties.
Specifically regarding the objective of promoting self-sufficiency, the Supreme Court of Canada in Moge v. Moge, Leskun v. Leskun, L.M.P. v. L..S. has commented that while one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouses within a reasonable time, the Divorce Act stipulates that this goal only applies “in so far as practicable.” This indicates that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case.
The concept of self-sufficiency is a relative one which must take into consideration the parties’ standard of living during the marriage. It is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. The court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage.
General Principles Respecting Entitlement
Undeniably, spousal support is a complex and multifaceted issue that takes into consideration various factors, including the duration of the marriage, the income and earning potential of each party, and the standard of living during the marriage among others.
The Supreme Court of Canada, in its wisdom, has articulated three conceptual models upon which entitlement to spousal support may arise: compensatory support, non-compensatory support, and contractual support.
Compensatory Support: Balancing the Scales
The compensatory basis for spousal support is aimed at recognizing and addressing the economic consequences of the marriage and its subsequent breakdown. It is predicated on the belief that there should be an equitable distribution of these consequences between the parties involved.
The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for the economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. This could include sacrifices related to career advancement, educational opportunities, or personal development.
Compensatory support claims are often seen in situations where one spouse has taken on primary responsibility for child care and/or home management, leading to economic disadvantage and a contribution to the other spouse’s income earning potential. However, a compensatory claim can also be established on other grounds, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party’s income.
Non-Compensatory Support: Meeting the Needs
Non-compensatory support, on the other hand, arises from the needs of a spouse. The Supreme Court of Canada emphasized in the case of Bracklow v. Bracklow that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage.
Non-compensatory support is grounded in what is known as the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It acknowledges that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state. Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support.
General Principles Regarding Quantum and Duration of Spousal Support
The determination of the quantum (amount) and duration of spousal support is subject to various factors.
The Role of the Spousal Support Advisory Guidelines (SSAG)
The Spousal Support Advisory Guidelines (SSAG) are a critical tool in determining the quantum and duration of spousal support. Although not legislated or binding, they have been widely accepted as an effective guide. The SSAG formulas generate suggested ranges for both the quantum and duration of spousal support, allowing for accommodations for the specific circumstances of each case.
The Thompson v. Thompson Case
In the Thompson v. Thompson case, the court outlined several key factors to be considered when determining the appropriate quantum and duration of spousal support. These include:
Strength of Compensatory Claim: Where one spouse can demonstrate that they have suffered economic disadvantage or the other spouse has reaped an economic advantage from the roles assumed during the relationship, a higher amount of spousal support and/or a longer duration might be justified.
Recipient’s Needs: Where the recipient has limited income and/or earning capacity, their level of needs may call for an award at the higher end of the quantum and duration ranges.
Children's Considerations: The age, number, needs, and standard of living of the children significantly influence the quantum and duration of spousal support.
Payor's Needs and Ability to Pay: The court also takes into account the financial situation of the payor spouse.
Work Incentives for the Payor: The court aims to strike a balance between ensuring the recipient receives adequate support and preserving work incentives for the payor.
Property Division and Debts: The amount of property to divide may influence the quantum and duration of spousal support. An absence of property to divide may render an award in the higher range appropriate. Conversely, a significant property award to the recipient may justify a lower amount of spousal support.
Self-Sufficiency Incentives: The court also considers the need to provide incentives for the recipient spouse to become self-sufficient.
In conclusion, the determination of spousal support is a complex process that takes into account a variety of situational and individual factors. While it can be a challenging aspect of divorce proceedings, understanding the principles that guide the decision can help ensure a fair outcome.
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