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Family Law's Crapshoot: Will Canada Reform Spousal Support Laws?

Will there be a grassroots movement in Canada to rethink spousal support in light of the reforms south of the border? I think it's inevitable.

Family law lawyers across Canada will tell you the payment of spousal support or alimony (as it was once called) is still the most difficult issue to resolve between divorcing spouses.

Up until 2006 spousal support awards were notoriously inconsistent. The outcome of a spousal support case depended on what day it was heard, what judge heard the case, and who counsel were on the case. It was family law's crapshoot.

In 2006 Canada's Spousal Support Advisory Guidelines were released, after the federal government empowered leading family law professors Carol Rogerson and Rollie Thompson to analyze and assess the nuances of spousal support and provide recommendations and guidelines that would help lawyers and judges determine who was entitled to support, how much should be paid and for how long it should be paid.

Today these Guidelines have the force of law, even though our legislators have never passed the Guidelines into law.

A calculation of spousal support under the Guidelines is based on the payor's gross income (usually the husband) and the wife's gross income, including common law spouses in most provinces.

The general rule is that spouses who are entitled to support will receive it for a minimum of one half the length of the marriage and cohabitation and a maximum of all the years of the marriage or cohabitation.

So, if you were married or cohabited for 10 years, you would receive support for a minimum of five years and a maximum of 10 years. Herein lies one of the resolution dilemmas. Of course, husbands only want to pay for five years, while wives demand 10 years of support.

The reality is, however, that judges in Canada are reluctant to make support orders that terminate on a fixed date, and routinely order that spousal support be "reviewed," even though the Supreme Court of Canada in Leskun v. Leskun 2006 SCC 25 criticized the use of review orders.

A review of spousal support is an expensive court process that entitles the recipient spouse to take a second crack at an indefinite spousal support order, as entitlement to support, amount of support and duration of support, are all up for grabs again.

For marriages 20 years or more, support is paid indefinitely, subject to a "material change in circumstances," a legal test that rarely releases payor spouses from their support obligations.

Are Canadians supportive of the current alimony laws? While men's rights groups criticize laws they say are unfair or prejudicial to them, the groundswell for the reform of alimony laws that is emerging in the United States has not yet crossed the border into Canada.

Most noteworthy are the reforms passed by the State of Massachusetts last month in their new Alimony Reform Act of 2011, heralded as the end of lifetime alimony in that state. Should Canada's spousal support laws also be amended to promote independence after divorce and fairness for both spouses?

In Massachusetts' groundbreaking new law, the following reforms have been passed by the House and the Senate:

1. Spouses shall only receive support for 60 per cent of the number of months of marriage. In Canada a spouse will be supported for between 50 per cent and 100 per cent of the months of marriage or cohabitation with many support orders being of an indefinite duration.

2. For marriages between 10 and 15 years, the maximum term for support is 70 per cent of the months of marriage and for marriages between 15 years and 20 years, the maximum length for alimony is 80 per cent of the months of marriage. In Canada a marriage in excess of 20 years results in an "indefinite" award of support, a more polite term for "permanent" support.

3. A second wife's income and assets are excluded. Frequently Canadian courts allow evidence of a new partner's financial circumstances, particularly where the payor spouse's income has been reduced.

4. Cohabitation with a new partner for a continuous period of three months suspends, reduces or terminates alimony. In Canada cohabitation will only result in a change in support payment if the recipient spouse lives with a wealthy partner who fully supports him/her. Try proving that.

5. For the purposes of an alimony order, the court shall exclude from its income calculation gross income the court has already considered for setting a child support order. In Canada child support is calculated first, and the amount of child support ordered can result in a decreased amount of spousal support, subject to an increase when the child support has decreased or terminated.

6. Alimony should not exceed the recipient's need or 30 per cent to 35 per cent of the difference between the parties gross incomes. Canadian courts consider "need" but favour an equalization of income between spouses that reflects the marital standard of living.

7. A second job or overtime income shall be excluded from the income calculation where the spouse works more than a single full-time equivalent position or the second job or overtime commenced after the initial spousal support order. Canadian payors must pay support on all income, including, in some instances, pension income that has already been divided between the spouses.

8. A payor spouse's payment of health insurance or life insurance for a recipient spouse shall reduce the payor's support payments. These payments are rarely taken into account by Canadian courts.

9. Alimony extensions are limited and require clear and convincing evidence. Extensions of spousal support are the norm in Canada.

10. Alimony ends with the remarriage of the recipient. Not in Canada. A payor spouse has the onus of proving to the court that a recipient spouse no longer needs support.

Will there be a grassroots movement in Canada to rethink spousal support in light of the reforms south of the border? I think it's inevitable. Laws that are paternalistic and punitive have no place in modern Canadian society, however, stay-at-home moms must maintain their elevated position, even in the face of spousal support reforms.

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