Family Law’s Crapshoot: Is Canada Ready for Spousal Support Reform?

Family law lawyers across Canada will tell you that the payment of spousal support or alimony (as it was once called) is still the most difficult issue to resolve between spouses.

Up until 2006 spousal support awards were notoriously inconsistent. The outcome of a spousal support case depended on what day it was heard, what judge heard the case, and who counsel were on the case. It was family law’s crapshoot.

In 2006 Canada’s Spousal Support Advisory Guidelines (www.justice.gc.ca) were released, after the federal government empowered leading family law professors Carol Rogerson and Rollie Thompson to analyze and assess the nuances of spousal support and provide recommendations and guidelines that would help lawyers and judges determine who was entitled to support, how much should be paid and for how long it should be paid.

Today these Guidelines have the force of law, even though our legislators have never passed the Guidelines into law.

A calculation of spousal support under the Guidelines is based on the payor’s gross income (usually the husband) and the wife’s gross income, including common law spouses in most Provinces.

The general rule is that spouses who are entitled to support will receive it for a minimum of one half the length of the marriage and cohabitation and a maximum of all the years of the marriage or cohabitation.

So, if you were married or cohabited for ten years, you would receive support for a minimum of five years and a maximum of ten years. Herein lies one of the resolution dilemmas. Of course, husbands only want to pay for five years, while wives demand ten years of support.

The reality is, however, that judges in Canada are reluctant to make support orders that terminate on a fixed date, and routinely order that spousal support be “reviewed”, even though the Supreme Court of Canada in Leskun v. Leskun 2006 SCC 25 (www.scc.lexum.org) criticized the use of review orders.

A review of spousal support is an expensive process that entitles the recipient spouse to take a second crack at an indefinite spousal support order, as entitlement to support, amount of support and duration of support, are all up for grabs again.

For marriages twenty years or more, support is paid indefinitely, subject to a “material change in circumstances”, a legal test that rarely releases payor spouses from their support obligations.

Are Canadians supportive of the current alimony laws? While men’s rights groups criticize laws they say are unfair or prejudicial to them, the groundswell for the reform of alimony laws that is emerging in the United States has not yet crossed the border into Canada.

Most noteworthy are the reforms passed by the State of Massachusetts last month in their new Alimony Reform Act of 2011, (www.massalimonyreform.org) heralded as the end of lifetime alimony in that state. Should Canada’s spousal support laws also be amended to promote independence after divorce and fairness for both spouses?

In Massachusetts’ groundbreaking new law, the following reforms have been passed by the House and the Senate:

1. Spouses shall only receive support for 60% of the number of months of marriage. In Canada a spouse will be supported for between 50% and 100% of the months of marriage or cohabitation with many support orders being of an indefinite duration.

2. For marriages between ten and fifteen years, the maximum term for support is 70% of the months of marriage and for marriages between fifteen years and twenty years, the maximum length for alimony is 80%of the months of marriage. In Canada a marriage in excess of twenty years results in an “indefinite” award of support, a more polite term for “permanent” support.

3. A second wife’s income and assets are excluded. Frequently Canadian courts allow evidence of a new partner’s financial circumstances, particularly where the payor spouse’s income has been reduced.

4. Cohabitation with a new partner for a continuous period of three months suspends, reduces or terminates alimony. In Canada cohabitation will only result in a change in support payment if the recipient spouse lives with a wealthy partner who fully supports him/her. Try proving that.

5. For the purposes of an alimony order, the court shall exclude from its income calculation gross income the court has already considered for setting a child support order. In Canada child support is calculated first, and the amount of child support ordered can result in a decreased amount of spousal support, subject to an increase when the child support has decreased or terminated.

6. Alimony should not exceed the recipient’s need or 30% to 35% of the difference between the parties gross incomes. Canadian courts consider “need” but favour an equalization of income between spouses that reflects the marital standard of living.

7. A second job or overtime income shall be excluded from the income calculation where the spouse works more than a single full-time equivalent position or the second job or overtime commenced after the initial spousal support order. Canadian payors must pay support on all income, including, in some instances, pension income that has already been divided between the spouses.

8. A payor spouse’s payment of health insurance or life insurance for a recipient spouse shall reduce the payor’s support payments. These payments are rarely taken into account by Canadian courts.

9. Alimony extensions are limited and require clear and convincing evidence. Extensions of spousal support are the norm in Canada.

10. Alimony ends with the remarriage of the recipient. Not in Canada. A payor spouse has the onus of proving to the court that a recipient spouse no longer needs support.

Will there be a grassroots movement in Canada to rethink spousal support in light of the reforms south of the border? I think it’s inevitable. Laws that are paternalistic and punitive have no place in modern Canadian society, however, stay-at-home moms must maintain their elevated position, even in the face of spousal support reforms.

Lawdiva aka Georgialee Lang

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10 thoughts on “Family Law’s Crapshoot: Is Canada Ready for Spousal Support Reform?

  1. If family assets are divided, then later, how often is it that spousal support awards and child maintenance amounts, are used to get what was not obtainable under the rules of property-asset division. Spousal support, as distinct from child support, should be based on ongoing demonstrated need; otherwise it is a slick backdoor to misuse the Courts for the malevolent purpose of obtaining a re-division of assets. Spousal support should be seen as temporary compensation for the dependency that was created arising from the life-style agreement made by the couple. What efforts and ability does the recipient have, and has made within ability, to become self-sufficient? What effort has the liable one, during the time of subsequent obligation, made to fulfill the obligation created? The legal onus must be shifted to the receiver to demonstrate real need annually.

    How often have we seen the ‘serial lady’ who uses the Courts to obtain both spousal and child support from several men at the same time, and such legal possibility was the devious plan all along. After divorce, money transfers between the former spouses often acquire a symbol of winning or losing, (keeping score) and who is ahead in the vindication game. They self-servingly think they are playing to the external world ‘of who really was the turkey in the marriage’. Of course, these combatants do not get it, that they are playing to empty bleachers and no audience, as no one else cares about a couple’s personal one-upmanship war-game.

    We need some new political champions to change the law, so that Family Law is not misused by the malevolent, and that the Courts are better protected against manipulation. As a starter, how about coming down hard on lawyers who knowingly put forward false affidavits from their clients, and have failed to show due diligence, that what they deposed, was true. There must be operational penalties against both lawyers and their clients for misleading the Court, and filing false allegations in Family Law.

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  3. The public policy slant toward the woman in this province has become a justification of abuses against men. If she says it, it must be so, is the way it goes. Especially if the man’s pleadings have been struck. So many precedents point out that when a man’s pleadings have been struck, the woman must provide fair, frank and full disclosure of all the facts. Instead, they lie, make incredible claims, and their words are taken as gospel by FRO. No due dilligence is done to ensure she is telling the truth. Men are being pushed to bankruptcy and suicide because of the actions of FRO and the women that organization works for (FRO certainly does nothing for men).

    What happened to women in divorce during the 1940s, ’50s and ’60s was reprehensible. Public policy was put into place to protect women because of that. I understand that. But public policy is now not only punishing men who deserve it, but men who through no fault of their own cannot (CANNOT not WON’T) pay the overly elevated levels of support being granted. I know of a case in which the man has been sentenced to 300 days of jail a year, on the assumption that this will force his hand and he’ll hand over money he does not have. He is being oppressed by the system. Who would hire someone who’ll be in jail for between 15 and 60 days at a stretch on a recurrent and constant basis (his ex ruined his ability to earn a living by killing his reputation in his industry)? So, he can’t even try to earn the quarter of a million dollars a year he’ll have to earn to stay out of jail, which means he’s guaranteed to be in jail … especially since the hearing as to whether or not he will actually be sent to jail will be in front of the very judges who put him in this position in the first place.

    And what about the man in southwestern Ontario who was pushed to suicide because FRO took his driver’s license, making it impossible for him to work and try to pay support (he was a truck driver). He tried to get a variance and they turned him down. Now, his ex-wife has no hope of getting spousal or child support and his children will never see their father again. I heard she’s suing FRO. I hope she wins.

    The men this is happening to did not cause the problem. Most of them weren’t even born yet, or were still babies back in the 40s, 50s and 60s. Yet, they are paying the price, and the price is far too high.

    • . We need to push the goverment to get FRO accountable. I’m a payroll administrator and I hear horror stories about that place, and I’m going through it in my personal life. That agency needs a tribunal to make it fair for payors to be heard.

      I’m working on a blog to get the word out there, that we need a spousal support reform big time. Too many recipients are using the current laws for getting cash for life. They should get off their ……. and contribute to society like the rest of us, and move on.

      I was so sad when I read the story about the man that commited suicide, like I said I see guys coming into my office and I’m not sure if they will show up at work the next day. Companies have a big problem with this right now, absenteeism and work relateted accident.

      Happy to see people are starting to talk about it, and are looking at ways to stop the insanaties. The Ministry of Social Services is behind those laws, as they do not want to support those recipients that have stayed home for a long time. And we can’t forget lawyers that write these laws.

      • So when is the law going to change? I am currently fighting with a former common-law partner who wants me to pay cash for life. There are no children involved, she just doesn’t want to work. We weren’t even married. If I had wanted to get married then I would have, but I didn’t. This is so horribly unjust for me.

        sds

  4. Lest we forget. You were council at Spencer v Spencer BCCA 265 an overwhelming case law development since SCC in Moge and Bracklow that entitled unlimited duration of spousal support and the equalization of spousal incomes was the norm. In the Spencer case the Court of Appeal dismissed an appeal of a 45 year old wife who had been married for 29 years. The husband earned $74,000 plus bonuses compared to the wife’s income which was less than $20,000. The Court of Appeal upheld the trial judge’s decision that the wife was entitiled to limited support for a period of two years. I would think that this Spencer case, which was not consistent with the law in the rest of Canada was a major breakthrough for you in your career as a lawyer and I am curious to know why you think that this case which is a “grassroot” to changing the law in Canada is not being used in spousal support trials within the courts in Canada?

  5. Hi there I have just been served with papers (recipient) to “review” my spousal support. I am a university student trying to finish my degree (3rd yr) and still need it. I am living with a man, but it is not his responsibility to support me while I go to school. He also pays support to his previous spouse for the children as he should be. He lives with a woman and has for over 2 years. Since he is asking the courts to take my partners income into consideration, would it be fair that the courts take his partners as well? I dont mind absolving the spousal if the child support went up because of both their incomes were considered. I just need some more time to finish my education, I was a stay at home Mom gratefully. I was a self litigant for my divorce and I just need some direction as to rebute. Thank you in advance.

  6. When my marriage disolved I had fewer assets than when it started. I tried to better myself career wise and through training through out the marriage in order to benefit my family. My ex wife wouldn’t work, go to school, wouldn’t even volunteer at school. It is my fault for not seeing who she was before I married her but why should I now pay her to be lazy??
    My children have inherited my work ethic as they both have jobs. She is lazy and thanks to family court can remain that way.
    Someone please explain to me how this is fair.
    My kids are almost 18 and once they are I will be leaving the country so as to not pay her anymore spousal support. Canada loses a contributing member of society but it gets to keep a leech.
    Something needs to be done.

  7. Family law is supposed to promote self sufficiency for recipients but it does the opposite. It goes out of its way to encourage the woman to avoid work and thereby render herself unemployable. tricks such as allowing a woman to avoid work after Separation just by saying she found it upsetting, then enrolling in courses where there could be no hope of getting a job, then quitting the course immediately after trial then saying she wants to just not work ..it goes on and on. Publicover v Hulsman , Hulsman worked as bank teller in the marriage , had 2 years off before ending the marriage, and hasnt worked for the past 7 years , despite only getting 50% access to the kids. She’s living with a guy who is wealthy but still takes over half her ex’s income while sitting on her fat…very fat …

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