Spousal support serves three purposes:
- To compensate the spouse with the lower income for sacrificing some power to earn income during the marriage
- To compensate the spouse with the lower income for ongoing care of children
- To help a spouse who is in financial need if the other spouse has the ability to pay[1]
Spousal support recognizes that spouses often make sacrifices that help the family. These sacrifices can disadvantage the spouse if the marriage breaks down. Spousal support recognizes these sacrifices and tries to correct them and avoid injustice. Spousal support is typically assessed using the Spousal Support Advisory Guidelines[2] (SSAG).[3] This is not legislation but rather it is a set of guidelines that the Department of Justice released to help address issues related support amounts and duration. They are designed to be used with divorces under the federal Divorce Act[4].
Aside from the traditional spousal support model that SSAG provides, there is another type of spousal support called compensatory support. Compensatory support is utilized to compensate a spouse upon the breakdown the marriage for contributions made during the marriage. Compensatory support has its roots in the Supreme Court of Canada decision in Moge v Moge[5]. The court said that compensatory support seeks to rectify the economic disadvantages of the marriage. In Moge, the court recognized that a wife who sacrifices her career aspirations for the family will have a decreased earning potential if the marriage breaks down. When she goes back to work, she will be at a disadvantage. Justice Dub said that a woman who stays at home can see her earning potential decrease by 1.5% for each year that she is out of the work force. This sacrifice can warrant additional support from a spouse who reaps economic advantages from it.
A case that illustrates when the court will utilize a compensatory model for spousal support is the recent Ontario Superior Court of Justice decision in Laurain v Clarke[6]. Justice Mossip outlined a series of factors that entitled Ms. Laurain to compensatory spousal support
[1] Department of Justice, About Spousal Support http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html
[2] Department of Justice, Spousal Support Advisory Guidelines http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html
[3] Christine Montgomery, DIVORCEmate software Inc,http://www.divorcemate.com/library/SSAG_Paper_0906.pdf
[4] Divorce Act, http://laws-lois.justice.gc.ca/eng/acts/D-3.4/index.html
[5] Moge v Moge, http://canlii.org/en/ca/scc/doc/1992/1992canlii25/1992canlii25.html
[6] Laurain v Clarke, http://canlii.org/en/on/onsc/doc/2013/2013onsc726/2013onsc726.html
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- When the parties first met, she was employed, made a decent living, was self supporting and had accumulated significant assets.
- She moved cities and left her job at the request of her husband so he could pursue a new job.
- She stopped working at the birth of their first child, upon returning to work she changed positions.
- After the second child, and upon her husband’s request, she stayed home to raise the children.
- The husband’s career advanced because of his hard work and the fact that he could devote 100% of his time to his career with the knowledge that his wife was devoting 100% of her time to the family and home.
- She was out of the work force for roughly 10 years at the date of separation, she has a lack of formal training or post-secondary education, and her chosen profession has changed dramatically since she left it.
Ms. Laurain was entitled to compensatory support because she made significant sacrifice for the family welfare that put her at an economic disadvantage when the marriage broke down. In the same vein, her husband received a significant advantage from his wife making those sacrifices.
The compensatory model is generally used to give a lump sum payment in return for the sacrifices that one of the spouses made. It is particularly applicable to a support agreement when property division is insufficient to compensate the one spouse for those sacrifices. Finally, compensatory spousal support can be used by the courts in conjunction with the traditional support methods. In Ms. Laurain’s case, she also received support in the middle to high range of the Spousal Support Advisory Guidelines (SAGG).
The issues surrounding spousal support are complex and require careful consideration. Compensatory spousal support is a tool that can help compensate a spouse who has been disadvantaged by the breakdown of a marriage. The lawyers at Dale Streiman Law LLP have decades of experience dealing with spousal support. They would be happy to consult with you on any of your family law needs.
By : Fred Streiman & Stephen Duffy
