Next season Family Matters will be dedicating an episode to spousal support. Spousal support is one of the most contested issues in separation and divorce proceedings in Canada. While each province has its own legislation to deal with common law spouses and married couples that separate but do not divorce, the dominating piece of legislation is the federal Divorce Act. The following includes some of my reflections when exploring the topic of spousal support.
After doing some background research on spousal support, I was surprised at how many goals and purposes are behind spousal support decisions. I was also surprised that some of these goals and purposes conflict with each other. The unfortunate result is that all courts have to perform a balancing act between these purposes and it often results in less than clear decisions. Considering that divorce isn’t the most cooperative process (to say the least), it is easy to see how this unpredictability can encourage costly court battles. To demonstrate this point, I will try to briefly describe three of the many purposes of spousal support.
One purpose is to compensate a former spouse for any investments they lost from the divorce. The typical scenario is when someone sacrificed a career to care for children. That sacrifice saved child-caring costs and allowed the other spouse to build a career with a stronger income, but prevented the stay-at-home parent from increasing their earning potential. When divorce strikes, that stay-at-home parent bears a bigger loss than the other spouse, so courts recognize they should balance that financial impact between the parties.
Another purpose is to ensure the financial needs of both spouses are taken care of. If one party no longer has the means to provide for themselves, then the other party should continue to provide for them. On the other hand, spousal support shouldn’t be granted unless the other party is actually able to pay it. Both parties needs have to be addressed before a reasonable conclusion can be made.
The big competing purpose (against the disadvantaged spouse) is that spousal support decisions need to encourage self-sufficiency of a disadvantaged spouse. If there wasn’t a push, some ex-spouses may never try to provide for themselves. They may try to just live off the other for as long as possible. Since that would hardly seem fair to a payer, courts recognize they have to try and prevent freeloading.
These are just three of many different purposes considered in spousal support decisions and already it is easy to see a balancing act. Real cases are much more complex so it is usually much less clear cut as to what the courts will decide. Unfortunately, this gives hope to both spouses that they may win a court battle, so it encourages fights instead of settlements.
Court battles cost large amounts of time and money. Often the amount a spouse can gain by a favourable judgement is not as much as the costs of litigation. Instead of sitting down and coming to a fair agreement themselves, many divorcees find a big chunk of their money go towards lawyers and legal fees to fight in court. That being said, court battles are often based on bitterness instead of any financial incentive, so financial sense may not prevent many cases from going to court.
In an attempt to address these issues, the Department of Justice of Canada supported the creation of Spousal Support Advisory Guidelines. These Guidelines are not law. Instead they are just a formula to assist in determining a fair number for support, and don’t address whether a spouse is entitled to spousal support. They have been a tool to help maintain a focus on the issues and to help parties resolve the issue before it goes to court. Judges also refer to them when they make decisions. Real cases are much more complex than can be captured in a formula, but the Guidelines can be regarded as a useful starting point.
Complex issues in inherently confrontational areas of law, such as divorce proceedings, will never have a simple solution. A broad general framework with many purposes and principles is required in order to be flexible enough to deal with the complexity of divorce cases. Unfortunately, a broad framework also usually brings uncertainty and litigation. Hopefully we are moving towards a legal system that can better manage these costs.