(Ex) Spousal Support* (1)
Spousal Support, (in my opinion) more accurately called Ex-Spousal Support (“ESS”), can be a stumbling block in your separation negotiations. Unlike discussions around child support or property division, where things may move along smoothly, when we start talking about ESS, things get hairy.
Simply put, nobody wants to pay ESS. If you are the payor, you know what I mean.
But as the payor, you really want to get through this and get on with your life, so you see it is as a necessary evil. To make things worse, it’s never clear how much we are talking about.
I explain to my clients that spousal support is not a black and white area of the law in Canada. It’s not like child support. I put it this way: “To calculate child support, you look up a chart called Child Support Guidelines and determine the amount owing next to the payor’s income along with some other factors that should be discussed with a lawyer.*(2) But for the most part, it’s black and white.”
You may think: “But spousal support can also be found on a chart called Spousal Support Advisory Guidelines.” These are “advisory guidelines” though. If you Google “Canada” and “spousal support,” the first link you will find is the Department of Justice (“DOJ”) website for Canada. On that site, the following information pops up:
Under the federal Divorce Act, spousal support is most likely to be paid when there is a big difference between the spouses’ incomes after they separate. However, this is not always the case. A court may decide that the spouse with the lower income is not entitled to support. The court may reach this decision if that spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the relationship.*(3)
I draw your attention to the above sentences: ‘However, this is not always the case. A court may decide that the spouse with the lower income is not entitled to support.’ to reinforce my point – ESS is a gray area of the law.
If you continue to read the DOJ link, you will note that there are many other factors taken into consideration when determining ESS, including, but not limited to, the financial means and needs of both spouses as well as well as the length of the marriage.
As you continue to read, you learn that one purpose of ESS is, “to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage.”*(4)
At this point, the only thing that becomes clear is how tricky it is to assess how much ESS and for how long the ESS should be. The measure is until one is ‘self-supporting’ – but how do you calculate this magic number?
You may also have been told that there is a software called “Divorcemate” that family lawyers use to spit out ESS numbers. This is true. But, again, there are so many variables to take into consideration, variables that need to be input correctly.
Consequently, the multifold issues that crop up when quantifying ‘compensation’ (as the law puts it) really need to be discussed in detail with a lawyer (rather than a friend, or neighbour, or a friend of a friend).
If you are the recipient of ESS, I understand what you are going thorough.
When I was going through my own divorce, I was panic stricken at the thought that I might actually need ESS. I had to ask myself a lot of tough questions. (My theme song throughout the journey was Destiny Child’s Survivor: “I am a survivor; I’m gonna work harder; I’m gonna make it!”)
At the same time, I needed to keep in mind how much my ex-spouse really wanted this necessary evil part over with – as quickly as possible. That is, (as a collaborative lawyer) I also kept his interests in mind – in order to finish at a good place.
I am a collaborative lawyer who’s been there and back. I am well prepared to have these conversations with you. I know you need to talk about it. I also know your decision will have to be uniquely your own. Your solution has to be a customized one. Call me. I can help customize your solution.
1. The term Ex-Spousal Support (“ESS”) is not a legal term.
2. For ‘other factors’ and legal information, please consult a family lawyer. The content of this blog is not intended to be legal advice and should not be relied upon or used as a substitute for consultation with professional advisors.
4. From: http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html
Judges must also consider whether spousal support would meet the following purposes:
1. to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage;
2. to compensate the spouse with the lower income for ongoing care of children; or
3. to help a spouse who is in financial need if the other spouse has the ability to pay.
At the same time, the judge must consider that a spouse who receives support has an obligation to become self-supporting, where reasonable.