Family Law Articles
SPOUSAL SUPPORT
Courts currently use their discretion to make spousal support awards
based on the circumstances of each case. Legislation such as the Federal
Divorce Act (for married spouses) and the Ontario Family Law
Act (for married and common law spouses) set out specific objectives
and goals, as well as factors to be taken into consideration, which
serve to guide the Courts' discretion. The law applies equally to same-sex couples and opposite-sex couples.
Spouses who are not formally married, but who have lived together
for at least three years or who are parents of a child and are in
a relationship of some permanence, may also be entitled to spousal
support.
Generally, the purpose of spousal support is to relieve any economic
hardship which may ultimately arise from a marriage or common law
relationship. The Courts attempt to ensure that the economic consequences
resulting from the breakdown of a marriage are shared equitably. A
spousal support obligation will likely arise if one spouse's standard
of living decreases upon marriage breakdown.
Courts will also look to compensate spouses for any sacrifices they
may have made for the sake of the relationship. For example, where
one spouse gives up career opportunities in order to manage the matrimonial
home and take care of the children, he or she should be compensated.
A final objective of the Courts is to promote the economic self-sufficiency
of each spouse. Spousal support may be awarded on a time-limited basis,
in order to encourage a spouse to seek employment or re-training.
Parties may agree to certain spousal support arrangements, which
can be provided for in a Separation Agreement. However, no Separation
Agreement will oust the jurisdiction of the Courts. If the Separation
Agreement does not meet legislative goals and objectives regarding
spousal support, a former spouse may be able to successfully vary
the support payable.
When making spousal support Orders under the Divorce Act, Courts
will consider the following factors:
» The length of cohabitation.
» The functions performed by each spouse.
» The relevant provisions of an existing Order or Domestic
Contract.
Under the Family Law Act, the following circumstances are considered:
» The parties' existing financial resources.
» The recipient's ability to support themselves.
» The payor's ability to support the recipient.
» The recipient's financial need, which is related to the standard
of living throughout cohabitation.
» Whether either party has dependants.
» Whether it is desirable for a party to remain at home and
take care of children.
» Whether the recipient contributed to the payor's career potential.
» The length of the cohabitation.
» Whether a spouse contributed to the relationship by caring
for children or providing domestic services.
DOMESTIC CONTRACTS/ SEPARATION AGREEMENTS
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