It has always been true that spousal support is one of the most difficult issues to resolve in family law cases. The introduction of the Spousal Support Guidelines in 2006 did provide some assistance by offering guidance to lawyers and judges with regards to monthly amounts and the length of spousal support payments. A review of recent Canadian case law indicates that spousal support remains a thorny issue that has caused many Canadians to spend hundreds of thousands of dollars attempting to terminate or perpetuate spousal support payments. My observations, upon reading many recent decisions, can be summarized, as follows:
- Many litigants’ support orders fail to indicate whether the initial order is compensatory or needs-based. In cases of indefinite support where the parties have entered into support agreements, the need to be clear about the basis for support cannot be overstated. Most often, support orders, resulting from contested applications, will provide evidence of their nature, either compensatory or needs-based, but consent orders and support agreements often do not. The cases indicate that where a spousal support order is compensatory, it is often more difficult for a payor to terminate support abruptly. Usually, transitional support for a time is ordered.
- Many Canadian women have ended up in poverty in their senior years, having relied on spousal support as their main source of income. While it may seem difficult for a 40 or 50 year old woman to retrain, family lawyers should encourage their female clients to be aware that only in the occasional case does spousal support continue after retirement.
3. Payors who retire before the age of 65 without serious health issues, will find it very difficult to persuade the court that spousal support should be terminated absolutely. Of course, other factors come into play, including the nature of the support order, the length of the relationship, the age of the parties at separation, and the length of time support has been paid.
4. Retirement after the paying spouse becomes eligible to retire with a full pension does not automatically constitute a material change that guarantees a reduction or termination of spousal support payable.
5. While judges cannot compel people to work, they can and will impute income similar to income capable of being earned.
Lawdiva aka Georgialee Lang