What is spousal support entitlement?
Mat Wirove is a Senior Lawyer and Mediator who practices family law in Calgary as part of the team at Crossroads Law.
One of the most contentious disputes that comes up in family law is around the issue of spousal support – how much am I owed or how much do I have to pay (if anything), and how does it get calculated? Otherwise known as alimony in the US, spousal support is financial support paid by one spouse (or common-law partner) to the other after the breakdown of a marriage or relationship. The purpose of spousal support is to recognize the contribution that each spouse made to the relationship.
It is meant to help the spouse receiving support to become financially independent, if possible.
Before determining any amount of spousal support, there is a threshold issue of whether a spouse is entitled to spousal support. The entitlement to spousal support in Canada is based on a number of factors, including the needs and circumstances of each spouse, the length of their relationship, and the roles and responsibilities that each spouse had during the relationship. In determining whether to award spousal support, the court will take into account a range of factors but to start, they must consider three main categories of spousal support entitlement.
What are the categories of spousal support entitlement?
The specific categories of spousal support entitlement are 1) contractual 2) compensatory and 3) non-compensatory. Entitlement can be found by the court in one, two or all three categories.
Contractual spousal support is rare and just as it’s named, it is based on a contract between the parties. Most often the court deals with entitlement on a compensatory or non-compensatory basis.
What is compensatory spousal support?
Compensatory spousal support is based upon what happened during the marriage and its breakdown. Both spouses should benefit from the marriage or relationship therefore, compensatory spousal support is designed to recognize the value of non-monetary contributions to a marriage or relationship and seeks to alleviate the economic loss of a spouse who has been disadvantaged by their role in the marriage or relationship. The court has described compensatory support as “whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared, for at least some period of time” (Corbeil v. Corbeil, 2001 ABCA 220).
Some indications that a party may be entitled to compensatory spousal support are that the recipient stayed home with the children (either full-time or part-time) or was a secondary earner which means that that their income was less than the other spouse in the relationship and they relied upon the primary earner’s higher income. It could also mean that the recipient moved for the other party’s career or supported the other party through education and training.
What is non-compensatory spousal support?
Non-compensatory spousal support is awarded for what happened after the relationship, or during separation. It is related to the post-relationship need, and a comparison of the standard of living enjoyed by the spouse prior to the end of the relationship or marriage. It focuses on a spouse’s actual ability to fend for themselves and the effort that they have made to do so.
In short, non-compensatory entitlement is based on need and it reflects the economic interdependency that develops as a result of a shared life. Some indications that a spouse is entitled to spousal support on a non-compensatory basis include: the length of the relationship, any drop in standard of living for the claimant after the relationship, and any hardship suffered due to the breakdown of the marriage or relationship.
Why is spousal support entitlement important?
As mentioned, entitlement to spousal support is an issue relating to threshold which means it is necessary for a party seeking spousal support to prove that they would fall into one of the three categories of entitlement. If they are not successful in that analysis, then no spousal support would be payable.
If the party requesting spousal support is able to establish their right to it, then which category of support they fall under will lead into where in the range of quantum (amount paid) and duration (of payments) they will receive. The idea is that the court will need to try and determine the quantum and duration of support that satisfies the recipients entitlement. For example, in shorter marriages where the entitlement is found to be non-compensatory only, duration and quantum typically end up in the low range. On the flip side, for longer marriages or marriages with children, compensatory support entitlement is generally found. This leads to quantum and duration in the mid to high ranges. Of course, each case is fact specific, and it will depend on each party’s specific situation.
What evidence is required to prove entitlement?
At a minimum, a spouse seeking entitlement will have to show the court the following:
- Ages of the parties
- Duration of relationship
- Net worth statements
- Current income
- Historical income (throughout the relationship)
- Income and income prospects
- Education of the parties
- Advances in education throughout the relationship (if any)
- Any relocations
- Any job loss or demotions throughout the relationship
- Health issues
- History of parenting and childcare
- Plans for the future
As the issue of spousal support entitlement is a complex threshold issue that is necessary to undertake before any calculation on quantum or duration can take place, it would be beneficial to speak to the lawyers at Crossroads Law who are all well versed in the financial aspects of separation and divorce. They can help you determine what spousal support you may be entitled to or help you calculate what you may be owing and for how long. To learn more, book your free 20-minute consultation with any one of our experienced lawyers today.