Family Law / Divorce Library

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Spousal Support:
Entitlement to Spousal Support

Entitlement to Spousal Support

A difference in income does not automatically entitle the lower income spouse/partner to spousal support (Griffiths v Griffiths, 2011 ABCA 359 at para 6).

Instead, there are three bases for entitlement to spousal support (Bracklow v Bracklow, 1999 CanLII 715 (SCC) at para 49):

  1. Contractual

  2. Compensatory

  3. Non-compensatory

Contents

Compensatory Support

Compensatory support is meant to relieve economic hardship that results from the marriage or it's breakdown. We consider "whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared, for at least some period of timeā€ (Corbeil v Corbeil, 2001 ABCA 220 at para 45).

The recipient finding a new partner doesn't necessarily stop spousal support, because the disadvantages from the marriage are not overcome until that spouse returns to work and progresses, or upgrades their training (Keen v. Christian-Keen, 2015 ABCA 314; Heimbecker v Heimbecker, 2007 ABQB 645 at para 54).

Compensatory support typically arises where:

  1. A parent was a stay at home parent for all or part of the relationship;
  2. A parent worked reduced hours in order to fit the children's schedule;
  3. A parent turned away promotions, training, or other advancement because of children or the relationship;
  4. The spouses agreed that a spouse would not work during the relationship, and would instead take care of the house;
  5. A spouse had to sacrifice their career so that the other spouse could move to a different city for work; or
  6. The spouses were both involved in a family business, which will only be retained by one of the spouses.

Recognition of a parent who worked part-time to care for children should not be diminished merely because the other parent is also active (Wild v Wild, 2019 ABCA 159 at para 3).

Contractual Support

Sometimes couples enter into agreements which state that spousal support will be payable. They might do so during the relationship in a pre-nuptial agreements or cohabitation agreement (Domestic Contracts), or after the separation in a settlement agreement or minutes of settlement.

Non-compensatory Support

Non-compensatory support is meant to address the financial need of party who cannot attain post-marital self-sufficiency, to avoid reliance on government assistance (Bracklow v Bracklow, 1999 CanLII 715 (SCC) at paras 31, 32, 46).

The following factors can be considered (Hamilton v Wallace, 2008 ABQB 90 at para 14; Desimone v Straub, 2010 ABQB 462 at para 120; Abbott v Abbott, 2010 ABQB 585 at para 34; Rubin v Gendemann, 2011 ABQB 71 at para 332; Mew v Mew, 2011 ABQB 531 at para 94; Kostin v Eaket, 2012 ABQB 756 at para 108; Klein v Wolbeck, 2016 ABQB 28 at para 66; Miller v Bennetsen, 2019 ABQB 266 at para 19; see also Daum v Daum, 2005 ABQB 135 at para 71 with additional factors):

  1. the parties' assets and means, now and in the future;

  2. the claimant's ability to contribute to his or her own support;

  3. the payor's capacity to provide support;

  4. the age and health of the parties;

  5. the claimant's needs, having regard to the accustomed standard of living while the parties resided together; and

  6. the payor's legal obligations to others.

The amount of spousal support won't necessarily equal the amount of their need though. Spousal support might only be a portion or a contribution (Bracklow v Bracklow, 1999 CanLII 715 (SCC) at para 54).

State funding (eg welfare / social assistance) does not reduce the obligation to pay spousal support, the amount is based on what the other spouse would pay instead of the government (Moge v Moge, 1992 CanLII 25 (SCC) at 865; Bracklow v Bracklow, 1999 CanLII 715 (SCC) at para 44).



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You're Viewing:

Spousal Support:
Entitlement to Spousal Support

Authors

Content by Ken Proudman of BARR LLP (Edmonton)

Last updated on November 11, 2022

Last complete review of all content on this page on November 12, 2022

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