The length of time spousal support is payable to a dependent spouse after the relationship has ended remains one of the most vexing issues in family law in Canada.
Generally speaking, it is safe to assume that the longer the relationship, the longer that spousal support is payable. However, as with any ‘rule of thumb’ there are exceptions.
Despite clear guidance from the authors of the Spousal Support Advisory Guidelines (“SSAG”), there are many conflicting decisions in Canada about the length of time spousal support is payable when the parties have separated and have a young child.
The SSAGs, which were introduced in 2008 and which apply across Canada, have attempted to create more certainty for litigants who must wrestle with the amount and length of time spousal support is payable. While the SSAGs do not have the force of law (they are ‘advisory only’) the courts are obliged to refer to them as a ‘check and balance’ when deciding spousal support.
Once there has been a determination that a recipient is entitled to spousal support, the SSAGs provide a range for both the amount payable and the length of time the spousal support ought to be paid.
Under the SSAGs, there are two considerations for the length of time that spousal support is payable: the length of the relationship and the age of the youngest child at separation.
Where recipients are younger, the “length of relationship” test, suggests that spousal support may be payable for a number of years, calculated as being anywhere between half the length of the relationship and the entire length of the relationship.
However, if there is a young child at the date of separation, the SSAGs also suggest that significant consideration be given to the the age of the youngest child.
If the child is not in school full time, the “durational limit” (length of time spousal support is payable) can range anywhere from the number of years until a child is in school full time (age six is assumed as being school age) to the date that the child turns 18. For a couple who had a three-year relationship and a child age two at separation, the SSAGs suggest that spousal support may be payable for anywhere from three to 15 years after separation: up to five times longer that the relationship itself!
The rationale for this wide range is simple: assuming there is no marriage contract setting out support terms, spousal support can be “needs based” or “compensatory” in nature, or both. Compensatory support is meant to reflect not only the economic consequences of the relationship and the roles played within it during the marriage, but also economic consequences of the breakdown of the relationship, including the roles played after marriage with respect to child-rearing.
Being a primary caregiver and single parent significantly limits a parent’s ability to pursue employment with long hours or shift work or business travel. When a child is ill, that child cannot be in school or daycare, and a child’s medical and dental appointments usually occur within working hours. Having a child — especially one who is very young at separation — clearly limits the primary parent and is an economic disadvantage in terms of becoming self-sufficient or devoting herself/himself to a career.
Nevertheless, many judges make orders placing a short time limit on spousal support, despite that there is a very young child in one spouse’s primary care at separation.
The authors of the SSAGs have been pointed in their criticism of the cases which set a time limit on spousal support after a short relationship if there are young children. “This has now emerged as one of the major problems,” the authors note. “Lawyers argue for, and courts grant, a short time limit at the initial stage where the marriage is short and there are young children. The time limit on spousal support is typically fixed at the number of years of marriage or cohabitation, e.g. four years of support after a four-year marriage, even though the recipient has the primary care of children aged one and three.”
But, the authors say, those short time limits “will only rarely be the right outcome at the initial hearing.” Instead, they suggest that most should be classified as “indefinite (duration not specified).”
“Often a review will be required in these indefinite orders, (as) these are usually cases with strong compensatory claims. The compensatory claim derives less from the past disadvantage during the marriage and much more from the future disadvantage for the parent with ongoing primary care of the children.”
Not surprisingly, support payors blanch when they hear that they are likely to have to pay spousal support for longer than the parties were together when there is a young child in the care of their former spouse.
But support payors should take heart. Most of the cases which do not set an end date for spousal support, do specify that the parties may return within a few years to “review” that support, at which time the amount can be changed and an end date may be set.
This article originally appeared in the National Post.
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