BY VALERIE DYE
Spousal support may be claimed either under the federal Divorce Act or under the Family Law Act of Ontario.
Under the Divorce Act ‘spouse’ refers to someone who is married to another person. Under the Family Law Act a spouse for the purpose of receiving spousal support refers either to persons who are married to each other, persons who are not married but have lived together in a conjugal relationship for at least three years or to persons who are not married but are in a relationship of permanence and are parents of a child or children.
Section 30 of the Family Law Act provides that:
‘Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.’
This provision suggests that even in situations where persons are still living together in a conjugal relationship an application may be made for spousal support where one party has a need and the other refuses to fulfil his or her obligation of providing financial support. This is supported by the case of Thomas v Thomas 2003 ONSC where J.W Quinn. J stated that Section 30 of the Family Law Act is not restricted to post-separation situations. The test is whether or not a husband or wife while living together refuses to provide financial support for the other where there is a need. If either party refuses to provide such support that party can be ordered to provide support to the extent that he or she is able to do so. It is important to note therefore that one does not necessarily have to wait for a separation to take place before claiming support.
How does the Court determine entitlement to receive spousal support? Case Law has identified three categories that may be used by the court to assess the entitlement to spousal support. The Court may award spousal support either on a needs basis, where it will determine the needs of the party claiming support; on a compensatory basis, where the aim will be to compensate a spouse who has suffered an economic disadvantage by virtue of the marriage or relationship or where that spouse has contributed to the economic advantage of the other spouse; on a contractual basis where the court will seek to enforce any agreement made by the parties in relation to the payment of spousal support.
The court also takes into consideration the length of the relationship and other issues such as the fact that one person may have remained at home to take care of children rather than pursue higher education or obtaining a job.
Given the various guidelines used by the court it is important to note that spousal support is not an automatic entitlement after separation or even during the marriage. Furthermore, even when one party is ordered to pay spousal support this may be for only a limited period of time to enable the other party to take steps to become self-sufficient.
