Criteria for Spousal or Common-law Partner Support
The topic of spousal support remains one of the most difficult and important areas of Family Law. At the end of the relationship, the parties do not always come out equal, financially, emotionally or practically. The court looks to the benefits and detriments of the relationship to each of the parties in determining eligibility for spousal or common-law partner support.
Complexity arises from the interdependencies and roles that the spouses or partners assumed and developed during the relationship, including the production and care of children, and the acquisition of property and debt. After a short relationship, where there were no children, and each has more or less stayed the same as how they came into the relationship, there might not be anything to talk about when the topic of partner support is raised. Longer relationships however, particularly those that generate children can be much more difficult to untangle as, over time, advantages and disadvantages may accumulate disproportionally.
One partner might have stayed at home to rear the children and manage the household, while the other has become educated or trained or simply gained experience and connections in a job or career.
When the relationship breaks down, fairness might dictate that there be a levelling of the economic field. The law is a rough tool to manage the disparities that may have occurred, or which the future will reveal, but it does provide some relief.
The court is available to redress the inequities that arise from the marriage or its breakdown by requiring one spouse or partner to pay financial support to the other. When this will be ordered and, if so, how much and for how long are vexing, complex questions, under constant review by the courts.
Entitlement and Quantum
The two main questions the court must answer in any spousal support case are 1) “Is the claimant partner entitled to support from the other?” and 2) if there is entitlement, the questions become “How much and under what terms and conditions should support be paid?” If there is no entitlement to spousal or partner support, there is no issue as to quantum.
On the entitlement issue, generally speaking, the court will look to the benefits and detriments of the marriage and its breakdown to each party. This may include an examination of the lifestyle that the parties enjoyed, the roles played by each, the demands of and sacrifices made for children, the subordination of one spouse's educational or career prospects to the other, and so on. This is called “compensatory” support.
Entitlement may be determined upon an analysis of need, independent of the roles played during the relationship, where, for examples, the income disparity is significant or one party has experienced illness. This is called “non-compensatory” support.
Entitlement might also be founded on “contractual” principles, where the parties might have entered into a written or oral agreement.
Decisions respecting spousal or partner support are subject to a high level of judicial discretion, so that it is often difficult to predict if spousal or partner support will be payable, and then, if entitlement is not an issue or is determined, the question of quantum, how much support will be payable, is also not capable of certain prediction.
Quantum, of How Much?
In the past, depending on the judge, the skill of the lawyers, and the circumstances of the case, the result of a spousal/partner support trial was often wildly unpredictable. The court, in applying its review of the “condition, means, needs and other circumstances of the parties”, as mandated by the Divorce Act, would often come to a result that another court faced, with objectively similar circumstances, might differ widely from.
Over time, other issues might arise, such as, whether the amount awarded by the court continues to reflect fairness in the light of changed or changing circumstances, for examples, loss of a job, significant increases or decreases in income, re-partnering, educational accomplishments and improved career prospects, the growth and maturation of children who become independent adults, may lead to the parties going back to court for variation of the court’s order or perhaps termination of the obligation to pay support.
The Spousal Support Advisory Guidelines (SSAG)
Some of the uncertainty on the issue of quantum, that is, how much support should be paid has been ameliorated by the introduction of Spousal Support Advisory Guidelines (SSAG).
These Guidelines were the product of a lengthy study undertaken by the federal government which resulted in a Final Report in 2008 which was followed by further discussion and refinement. A copy of the report can be found here.
The SSAG assume that the issue of entitlement is determined. The SSAG do not determine whether a party is entitled to support. It looks at the length of cohabitation of the parties, whether there are child support obligations and the incomes of the parties to provide a range of support outcomes.
The philosophy is that the outcome of a divorce after a very long, so-called “traditional marriage” (25 years or more), should be more or less equal for the parties on a go-forward basis, that is, that they should have the ability to have similar lifestyles.
The formula itself is somewhat complex, and given the disparate income tax treatment of child support (which is tax-free and paid from tax-paid dollars) and spousal support (which is deductible from the income of the payor and included in the income of the recipient) is best calculated with specialized support calculation software, which most Manitoba lawyers and the judges of the Family Division have.
While the SSAG are persuasive and the courts have been admonished to at least consider them, they are, in fact, merely guidelines, without legislative authority, and a court is not required to follow them. The court’s analysis may involve the determination of where in a range the result will be found.
The use of SSAG can be complicated and complex. They were developed to meet the typical case and there are numerous exceptions which may skew the results or make them inapplicable.
It is critically important that the information used in any given calculation is accurate and applicable. Attention will need to be paid to the determination of income and the possible imputation of it, as in a child support case.
Different formulas apply when there are children whose support must be taken into account, if there are Section 7 expenses, or if there are no children, or if they are over the age of majority.
Support for common-law spouses, including same sex relationships, in Manitoba, is governed by the provisions of The Family Maintenance Act.
To qualify for common-law partner support, the parties must have:
Once one of the above criteria is established, generally, the law of entitlement and quantum is the same as for other separating couples.