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The Fishman Beley Family Law Primer - Family Law 101
Spousal and Partner Support
SPOUSAL SUPPORT LAWYER IN WINNIPEG
The topic of spousal support in Winnipeg 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. Fishman Beley’s experienced and knowledgeable lawyers are ready to assist you to understand and deal with the process. Call us now for all the information you need to know about spousal support in Winnipeg.
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.
At Fishman Beley, our experienced lawyers are here to extend professional legal help. Our lawyers are sensitive and compassionate in dealing with our clients to help you arrive at appropriate conclusions.
Who is Eligible for Spousal Support?
Contrary to popular understanding, spousal support is not an automatic right which is associated with the breakdown of a marriage shared by two individuals. For clarity, the Supreme Court in 1999 listed the following three main grounds according to which the entitlement to spousal support can be established:
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To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
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To fulfill a contractual agreement, expressed or implied, that the parties were responsible for each other’s support; or
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On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.
It must also be remembered that spousal support is not restricted to married parties. It also includes formerly married couples as well as couples who have been cohabiting for a period of at least three years or cohabiting biological or adoptive parents. It is also necessary to point out that even if adultery is the reason for the breakdown of the relationship, parties are still eligible to apply for spousal support.
Entitlement and Quantum
The two main questions the court must answer in any spousal support case in Winnipeg 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.
Entitlement
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, OR HOW MUCH SUPPORT?
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 facts and 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 court will entertain a revision of a Final Order for support upon proof that there has been "a material change of circumstances".
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. A copy of the report can be found here. Subsequent revisions and modifications have been published as the Revised User's Guide which can be found here.
The SSAG assume that the issue of entitlement has been 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” (20-25 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, "advisory", that is, 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. Child support on the other hand is determined pursuant to the Child Support Guidelines which are mandatory in child support cases. See our Primer on child support.
COMMON-LAW SUPPORT
Support for common-law spouses, including same sex relationships, in Manitoba, is governed by the provisions of The Family Law Act.
To qualify for common-law partner support, the parties must have:
Registered their relationship under The Vital Statistics Act; or
Have been living together in a "conjugal" relationship in excess of three years; or
Have lived together for one year in a conjugal relationship and there is a child of their union.
Once one of the above criteria is established, generally, the law of entitlement and quantum is the same as for other separating couples.
Your Satisfaction Is Our Priority
Our team of experienced lawyers at Fishman Beley Family Law in Winnipeg is aware of the impact Family Law can have on multiple aspects of your life such as career prospects, property and children. We ensure that our highly professional and skilled family lawyers represent you in such matters of utmost importance with exceptional efficiency. We endeavour to offer our legal services tailor-made for your specific needs. Our holistic approach to family law is completely based on our aim for quality customer service by being accessible, affordable and communicative.
Schedule an Appointment
If you need to consult our lawyers in Winnipeg regarding spousal support, schedule an appointment with us now. You can also fill in the online form or write to us at contact@fishmanbeleyfamilylaw.ca to get more details.
