Determining whether spousal support is payable is a complex legal question which is determined based on the case’s particular facts and the parties’ circumstances.
Under the Family Law Act, a spousal support order is supposed to recognize the spouses contribution to the relationship and the economic consequences of the relationship for the spouse; share the economic burden of child support equitably; make fair provision to assist the spouse to become able to contribute to his or her own support; and relieve financial hardship.
The court looks at a number of factors in determining quantum (amount) and duration of spousal support, such as:
- (a) the dependants and respondents current assets and means;
- (b) the assets and means that the dependant and respondent are likely to have in the future;
- (c) the dependants capacity to contribute to his or her own support;
- (d) the respondent’s capacity to provide support;
- (e) the dependants and respondents age and physical and mental health;
- (f) the dependants needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
- (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
- (h) any legal obligation of the respondent or dependant to provide support for another person;
- (i) the desirability of the dependant or respondent remaining at home to care for a child;
- (j) a contribution by the dependant to the realization of the respondents career potential;
- (k) if the dependant is a spouse:
- (i) the length of time the dependant and respondent cohabited,
- (ii) the effect on the spouses earning capacity of the responsibilities assumed during cohabitation,
- (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
- (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
- (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
- (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
- (l) any other legal right of the dependant to support, other than out of public money.
The issue of spousal support can also be addressed with reference to the Spousal Support Advisory Guidelines. These guidelines are not law (in that courts are not bound to follow them) but they serve as a useful starting point in determining whether a spousal support obligation exists, and if so, for what duration and in what amount.