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Spousal support: what does it mean and who qualifies?

Updated: Jun 15, 2020

Recently, the Superior Court of Justice in Sauer. v. Narum, 2019 ONSC 6645 by Justice Lacelle analyzed the answers to this question.  The Judge first went into the legal principles of the meaning of the term spouse. The legal principles - who is a spouse?: of 

[22] Because the parties were not married, the Family Law Act [“FLA”]is the law that applies in this case.  

[23] Section 30 of the FLA provides that “every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so”. 

[24] Section 29 confirms the meaning of “spouse”:  “Spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited, a) continuously for a period of not less than three years; or b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

[25] The FLA sets out in s. 33(8) the purposes of a spousal support award. The order should: a. Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; b. Share the economic burden of child support equitably; c. Make fair provision to assist the spouse to become able to contribute to his or her own support; and d. Relieve financial hardship, if this has not been done by orders under parts 1 (Family Property) and II (Matrimonial Home).

[26] Section 33(9) of the Family Law Act directs the court to consider all the circumstances of the parties in determining the amount and duration of any support award, including specific factors such as the dependant’s and respondent’s current assets and means (s. 33(9)(a), the dependant’s capacity to contribute to her own support (s.33(9)(c), the respondent’s capacity to provide support (s. 33(9)(d)), and the dependant’s needs (to be considered having regard to the accustomed standard of living while the parties resided together) (s. 33(9)(f)).

INTERIM SPOUSAL SUPPORT: The Court asked the question - how to determine interim spousal support? Interim means before a trial has taken place or the point in time until a trial takes place, and a final decision is made.

The Court quoted para. 24 of Damaschin-Zamfirescu v. Damaschin-Zamfirescu, [2012] O.J. No. 5586 (S.C.J.). They include the following:

(1) The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.

(2) In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.

(3) The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.

(4) The primary goal of an interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.

(5) Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance.    For a reader, the summary given above provides very useful guidance. After all, this is a question that keeps coming up from time to time when unmarried spouses ask after separation - how much does my spouse owe me in support. But first, we have to ask who is a spouse?

The court then embarks on another extremely useful analysis of the type of spousal support including needs based support and it’s meaning.

Non-compensatory claims involve claims based on need. “Need” can mean an inability to meet basic needs, but it has also generally been interpreted to cover a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance and expectation, summed up in the phase “merger over time”. Common Markers of non-compensatory claimsinclude: the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant. c. In determining whether economic hardship of a spouse arises from the breakdown of the marriage, the starting point should be a comparison of the spouse’s actual situation before and after the breakdown. If the economic hardship arose shortly after the marriage breakdown, that may be a strong indication it is caused by the family breakdown: per McLaughlin J. (as she then was) in her concurring reasons in Moge v. Moge1992 CanLII 25 (SCC), 1992 3 S.C.R. 813 at para. 120 d. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership:Gray v. Gray2014 ONCA 659 (CanLII) at para. 27; e. In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses: Gray at para. 27. Court’s finding and determination:

The Court ruled in favour of the applicant mother for the following reasons: 36] I am satisfied that the Applicant has met her onus of demonstrating, on a balance of probabilities, a prima facie case for spousal support. 

[37] While the evidence is not robust in its detail, the Applicant has adduced sufficient evidence to satisfy me that she meets the definition of “spouse” as set out in the FLA. The parties have a child together. The totality of the evidence, including the evidence that for almost a year, the parties cohabitated with their daughter, supports the conclusion that the parties were in a “relationship of some permanence” under s. 29(b) of the FLA.

[38] The Applicant has also met her burden in demonstrating a prima facie claim to needs based spousal support. The evidence demonstrates a significant disparity in the incomes enjoyed by each of the parties at this time and that the Applicant has a need for support. While the evidence is not detailed, there is evidence before me that the Applicant depended on the Respondent’s income during their relationship. The Applicant is the primary caregiver for their young child and has been since the parties’ separation. These facts give rise to a prima facie case that the Applicant has suffered an economic disadvantage as a result of the breakdown of the relationship which entitles her to spousal support.  

[39] In considering the means and needs of the parties, I am also satisfied that the Respondent has the means to pay spousal support set at the low end of the SSAG, in addition to child support. While I have considered the Respondent’s submission that the obligation to pay spousal support will affect his ability to meet his daughter’s needs while she is in his care, the evidence on the motion does not support that conclusion. The Financial Statement of the Respondent demonstrates that he has an ability to pay both child support and spousal support at the Guideline amounts requested by the Applicant. 

[40] I consider as well that the Applicant has requested the amount of spousal support suggested at the low end of the SSAG. This is fair in the circumstances. The amount suggested at the low end of the SSAG is appropriate in this case having regard to the nature of an interim order as a “holding order” until the triable issues may be fully resolved on a tested evidentiary record.  

[41] Consequently, on an interim basis, and commencing on November 1st, 2019, the Respondent shall pay spousal support to the Applicant in the amount of $741 per month. 

[42] Spousal support arrears for the period between July 1, 2019 and October 30, 2019 (a period of 4 months) are fixed at $2964.00.

CONCLUSION: Clearly, this is an informative and very analytical case. But the case also demonstrates the importance of sound analysis and research that is important to reaching a conclusion and which needs to be presented to the court through logical and thorough arguments.  At Shankar Law, you can be assured of the time, effort and analysis to analyze, research and to present your case effectively.

We proudly primarily serve Grey, Huron and Bruce counties. Specifically, with two offices in PortElgin and in OwenSound, we serve communities in and around Southampton, Wiarton, Walkerton, Hanover, GODERICH, Meaford, Chatsworth, Markdale, and Kincardine. We look forward to hearing from you and to serving you.


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