Spousal Support… Will I Get It?

November 15th, 2011 by

Spousal support is one of the more complex issues in family law.  A spouse, whether married or common-law, does not automatically receive spousal support from the other spouse.  In order to receive spousal support, one must prove that they are entitled to receive it.  Proving entitlement under section 33(9) of the Family Law Act involves considering all of the following:

  1. Both parties’ current assets and means;
  2. The assets and means that both parties are likely to have in the future;
  3. The dependant’s capacity to contribute to his or her own support;
  4. The payor’s capacity to provide support;
  5. Both parties’ age and physical and mental health;
  6. The dependant’s needs (while considering the standard of living the dependant had while the parties resided together);
  7. The measures available for the dependant to be able to provide for his or her own support and the length of time and cost involved to take those measures;
  8. Any legal obligation of one of the parties to provide support for another person;
  9. The desirability of one of the parties to remain at home to care for a child;
  10. A contribution by the dependant to the payor’s career potential;
  11. If the parties are spouses, the court will also consider:
    1. the length of the cohabitation;
    2. the effect on the spouse’s earning capacity due to the responsibilities assumed during the cohabitation;
    3. whether the spouse has undertaken the care of a child who is older than 18 but has an illness, disability or other cause withdraw from parental control;
    4. whether the spouse has undertaken to assist with the education for a child older than 18 or who is unable to withdraw from parental control;
    5. any housekeeping, child care or other domestic service performed by the spouse for the family;
    6. the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and,
  12. Any other legal right of the dependant to support, other than out of public money.

The conduct of the parties is only relevant if one party’s conduct is “so unconscionable as to constitute an obvious and gross repudiation of the relationship”.  Therefore, the fact that one spouse may have had an affair or the parties signed an agreement opting out of spousal support when it would be grossly unfair in the circumstances, may not enough to extinguish the obligation of one spouse to pay support to the other if that person is a dependant and entitled to receive spousal support. It may, however, affect the quantum.

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