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Spousal Support:  Where are we now?

About 20 years ago a judge commented that the law regarding spousal support is a "Rubiks cube, for which no one yet has written the solution". Unfortunately, most judges and lawyers would agree with this statement today.  While there are a host of factors considered, there are basically two overriding principals that guide our courts today.

The first is what we call the "needs" based approach.   Its focus is on the state of the marriage at the time of the breakdown.  The second is the "compensatory  model".  It is designed to address the advantages and disadvantages arising from the marriage and its breakdown. 

The needs based approach was applied for many years leading up to the early 1990's and, as indicated, focused on the state of affairs existing at the time of the marriage breakdown.  In determining spousal support, little attention was paid to the history of the relationship.   In keeping with societal attitudes at the time, the underlying goal of this approach was to enable women to achieve self-sufficiency within a relatively short period of time.  The courts looked at the budgets of both of the parties after the breakdown and examined them from a "needs" and "ability to pay" point of view.  The practical result of this approach was spousal support orders that were comparatively low in value and limited in duration.

In 1992 our Supreme Court adopted different approach based on the compensatory model.  The goal of this approach was not simply to address needs, but to provide compensation to women for the role they adopted during the marriage.  In applying this approach the courts began to conduct a detailed examination of the roles and functions of each of the spouses during the marriage.  The most common consideration was whether the wife had given up her career to stay at home and raise the children.  While self-sufficiency was still an important consideration, it was now only one of a number of different factors to be kept in mind.  More emphasis was also placed on the standard of living enjoyed by the parties during the marriage.     The practical result of adopting this philosophy was to create awards which were higher and of longer duration.   While seemingly a good idea, this approach proved difficult to apply in everyday life, for how are we to value these sacrifices?

Towards the end of the 90's the courts again shifted their approach and now are applying both of these models.  Practically speaking, what this means is that in cases where there are limited funds (most cases) the goal will be to apportion those limited resources.  In cases where the couple enjoyed a healthy standard of living, the focus will be more on maintaining this.  Trial judges are given wide latitude in setting the amounts payable.

How long support is paid is now more dependant on the length of the marriage.  If it was short (less than 5 years), then support should only be payable for a few years at most.  If the marriage was long term (more than 10 years), then support may be indefinite. 

Applying these principals to everyday life and real divorces is difficult.  Shifts in societal attitudes make it even more difficult for the courts to be consistent.  In the end, our judges can only do what they think is fair in any given case.

by Tom McCartney
August 7, 2002