Legal summary of the law relating to spousal support in Alberta

Spousal Support

There are two pieces of legislation that may govern spousal support in Alberta:

  1. The Divorce Act of Canada; and
  2. The Family Law Act of Alberta.

1) The Divorce Act

The Divorce Act is legislation that applies if you were married and are now divorcing. It provides that spousal support is payable in certain circumstances.

There are 3 questions that are raised with spousal support.

They are:

  • Is there entitlement to spousal support in this circumstance?
  • If there is entitlement, how much support is payable?
  • How long is support payable?

Case law provides us with information regarding how the Judges interpret the Divorce Act and the circumstances surrounding when spousal support is payable and what factors they will consider when determining the duration and quantum of spousal support.

The Divorce Act states that a spousal support order should:

  • Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  • Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  • Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  • In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Some of the factors the courts have considered include the following:

  1. Length of Marriage;
  2. Roles of parties in the marriage;
  3. Age;
  4. Income & Earning Capacity;
  5. Duty to become self sufficient;
  6. Length of time out of work;
  7. Budgets;
  8. Education & Training/Work Experience;
  9. Children’s ages;
  10. Lifestyles;
  11. Health;
  12. Parenting;
  13. Job security;
  14. other people;
  15. Agreements (pre-nuptials and marriage contracts);

In addition to this, the case law has employed 2 different theories relating to spousal support. They include:

  • what are the needs and means of the parties:

this aspect looks at budgets and incomes

  • is there any reason that there should be support over and above needs and means based on the concept of compensatory factors:

this aspect looks at whether there is any reason that there should be a more equitable distribution of the earning income as between the parties.

Having regard to all of the factors that a court can consider when awarding spousal support and having regard to a Judge’s discretion in this area, there was a huge range across Canada with respect to whether spousal support was payable and what the range of spousal support would be, if it was payable. For example generally spousal support awards in Ontario and BC would be more generous than spousal support awards in Alberta.

In an effort to address the huge range of uncertainty in this area, a group of academics and family law lawyers in Canada put together an analysis of the law and factors that courts have considered in spousal support, and recommended a formula that would provide more certainty and predictability to spousal support awards. The culmination of this project was the Spousal Support Advisory Guidelines which were released in 2005. The Spousal Support Advisory Guidelines (SSAG) are not binding on a Judge. However, there are two Court of Appeal cases (one out of British Columbia, and one out of Ontario) which indicate that if a Judge is presented by counsel with SSAG guidelines, it is an error of law for a Judge not to look at them. The Judges are not bound to follow the guidelines, but they cannot dismiss them out of hand. The guidelines are a useful reference point and they certainly may influence a judge’s determination.

As you and your spouse attempt to negotiate spousal support that you may agree on, you need to know what a Judge might order in this area, so that you are making a fully informed reasoned decision relating to spousal support.

In summary, external information that informs us in this regard includes:

  • Reference to similar fact cases;
  • Analysis of budget/incomes;
  • The Spousal Support Advisory Guidelines.

2) The Family Law Act

The Family Law Act is Alberta legislation that relates to spousal support. It may apply to married and unmarried persons.

There is an entitlement for unmarried persons to apply for spousal support under this legislation if they were an Adult Interdependent Partner (AIP).

You are an AIP if:

  • You lived with another person in a relationship of interdependence:
  • For a continuous period of not less than 3 years, or;
  • of some permanence, if there is a child of the relationship by birth or adoption,

OR

  • the person has entered into an adult interdependent partner agreement with the other person in accordance with the legislation.

The factors that a Judge must consider under this legislation in determining whether support is payable, and the factors relating to the duration and quantum of spousal support that is payable is very similar to the Divorce Act legislation.