Sometimes called alimony, spousal support is the financial support paid by one individual to their former spouse following the breakdown of their union. Are you eligible for spousal support? What are your rights?
Sometimes called alimony, spousal support is the financial support paid by one individual to their former spouse following the breakdown of their union. Are you eligible for spousal support? What are your rights?
Alimony comes from the Latin word “alimonia”, meaning nourishment. In the case of a divorce or separation, alimony or spousal support serves the purpose of alleviating any financial suffering that may result from the breakdown of a relationship.
The financially dependent spouse is often eligible for financial assistance from their ex in order to cover bills, food expenses, and other such costs following the breakdown of the relationship.
Spousal support paid on top of sums paid or property transferred from the partition of family assets that the spouses split following a divorce or separation.. Family assets might include the family residence and country home and their furnishings, the family car(s) or other vehicles used by the family, as well as pensions and RRSPs. Here, our experienced family lawyers outline your rights and potential financial obligations following a divorce.
The notion of spousal support is almost as old as the institution of marriage itself. The promise to support each other “in sickness and in health, for richer or for poorer” is usually part of traditional wedding vows. Making a commitment to love one another, live together, mingle assets, and raise children involves some degree of risk. In this sense, the legal rules governing spousal support are designed to make marriage and its inherent risks a more secure venture by protecting the more vulnerable party from the consequences of its potential breakdown.
And so, legal rules dictate that when a partnership dissolves, the wealthier partner is responsible for helping the less wealthy partner to get back on their feet. What does Quebec and Canadian law dictate about spousal support obligations?
Your right to spousal support
Every married spouse in Canada going through a separation or divorce has the right to request spousal support. However, the judge’s decision regarding whether such support may be granted and the extent of the spousal support to be paid depends on the following factors:
- Financial means and needs of both spouses. The requesting party must establish that they are financially in need. “Need” is defined by not being able to independently maintain a similar standard of living that they enjoyed during the marriage.
- Financial support can only be granted if the ex has the means to provide this support. In cases where providing financial support would subject the ex to great financial distress, the ex would not be obliged to provide financial support.
- Length of the marriage. The longer the marriage, the stronger your right to support. This is because, generally speaking, financial dependence and the inability to recover from it are intensified when the union is long-term.
- Roles of each spouse during their marriage. For example, the case for spousal support is greater in a situation where one partner generally assumed the role of being the financial provider while the other generally assumed the role of caretaker (e.g. to the children or even the other spouse, the maintenance of the home, or for unpaid work supporting the other spouse’s career or business), the case for spousal support would be stronger.
- If one party can establish that they sacrificed career or financial opportunities to assume the role of caretaker and that their ability to earn income going forward is therefore compromised, the case for spousal support would again be stronger.
- Generally speaking, the party who is or was the primary caretaker for the children may need more financial support.
Provision for costs
You may have heard the term “provision for costs”. In the context of a divorce or separation, a provision for costs is when the financially dependent partner requests that the other party help pay the legal fees associated with their divorce or other related professional fees (i.e. psychologist, accountant).
A provision for costs is considered a form of spousal support and hence anyone going through a divorce in Canada has the right to request one.
Duration of spousal support
The laws governing spousal support do not intend that this support be granted for life. They do not want to encourage long-term financial dependence. The goal is to help the recipient get back on their feet over a reasonable period of time, given the circumstances. That said, some circumstances may indeed warrant support for life. An example of this would be a very long-term union where the recipient spouse is seriously unable to make their own living after separation owing to, say, sickness or unemployability. However, these situations are atypical.
Keep in mind that the parties are somewhat free to make their own spousal support arrangements. The Court will take into account any orders, agreements, or arrangements already made about spousal support. However, the Court may modify them if they are deemed unreasonable or problematic or if they do not meet the overall purpose of spousal support.
In Quebec, common law couples are not entitled to spousal support
In Quebec, common law spouses, also called “de facto spouses”, do not have the right to spousal support following the breakdown of their relationship.
Common law partners are generally defined as unmarried people in spousal relationships who have cohabited for at least 3 years or who have had child together and have cohabited for at least 1 year.
In other countries and other Canadian provinces, common law spouses are eligible to receive spousal support. However, in Quebec, this is not the case.
For these reasons, if you live in Quebec, are in a common law relationship, and are concerned about the absence of spousal support, it is advisable to get married or that you enter into a cohabitation agreement.
Cohabitation agreements are contracts signed by common law spouses where they decide what rules should govern the potential breakdown of their union. Spousal support (or something like it) is one potential issues these agreements attend to, among other things like partition of assets. We strongly urge anyone considering such an agreement to receive independent legal counsel because these agreements are fraught with potential problems. Central among them are the fact their legal interpretation is not supported by decades of case law or family law statutes, so the way they will be treated by a judge is less certain. Moreover, should one party frustrate the agreement’s execution when the relationship breaks down, the vulnerable party will not have the more robust legal recourses available to married spouses, such as obligatory financial disclosure and the ability to preemptively freeze assets.
Goldwater, Dubé is a family law firm based in Montreal, Quebec. We help families dealing with divorce, child custody, and the protection of assets. We treat all cases with compassion and expertise. We will put you and your loved ones first, protecting you and all that you hold dear. Book a consultation with one of our expert family lawyers today.
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