What Category Are You In?

Spousal support, or alimony as it is often referred to on TV and in the movies, is often part of a divorce.  However, no matter the length of a marriage, there is rarely any guarantee that either a husband or a wife will be entitled to spousal support.  In Canada a court will only make an award of spousal support if one of the spouses is entitled to it.  What this means is that the spouse who wishes to receive the support must fit into one of three categories:

• Contractual support
• Needs based support (also known as non-compensatory support)
• Compensatory support

If a spouse does not fit into one of these three categories, a court will not order spousal support to be paid. 

A

Contractual support is quite simple: it is support that the two spouses contracted into previously.  Often this is by way of a prenuptial agreement, however postnuptial agreements are also becoming more and more common.  In these contracts, spouses can agree to almost anything when it comes to spousal support.

B

Needs-based support is an appropriate form of spousal support where one spouse is unable to care or provide for themselves, or if they have some other need that has arisen as the result of the breakdown in the marriage, a court will grant needs-based support in order to allow the spouse to meet this need.

C

Compensatory support is the final (and most common) type of support.  This is support which a court awards because one of the two spouses (usually the woman) has suffered from some form of loss as a result of the marriage and the court deems it proper that this loss be compensated.  The usual examples include a wife who chose to stay at home and raise children while the husband continued to grow in his career.  As a result, the woman did not have the same opportunity to develop her skills and career.  Courts have said that this is a loss for which there should be compensation.

When it comes to calculating how much support will be paid, and for how long there should be payment, things get more complicated.  Generally, a court will award spousal support for “one half the term of the cohabitation”, however courts are free to deviate from this.  Likewise, courts will often use the Federal Spousal Support Guidelines when establishing how much support will be paid each month during this period, however they are free to deviate from this.

Spousal support is a complicated area of law and awards of spousal support are greatly influenced by the factors in each individual case.  If you have questions about how spousal support may apply in your own situation, please contact us today to set up a consultation.