SPOUSAL SUPPORT (married spouses)
Once the claim is filed and served on your spouse, the Plaintiff (or the Defendant) may start the Court process to apply for spousal support. At any time before or after the Statement of Claim is filed, the parties may negotiate their own agreement on the amount, frequency, and duration of spousal support. Such an agreement may be reduced to a written agreement or a Consent Court Order. The payment of spousal support is tax-deductible to the payor and taxable to the payee, but only if the written agreement or Court Order contains essential language required by the Income Tax Act. A written agreement for spousal support is not enforceable by the Alberta Justice Maintenance Enforcement Program (MEP), but a filed court Order is enforceable by MEP if it contains the appropriate language and the MEP clause.
Monthly or Lump Sum
The court may make an interim or permanent Order for a periodic (i.e. usually monthly) or a lump sum spousal support payment. The Court has wide latitude to craft an Order on any terms it considers appropriate based on the factual circumstances of the case.
It is important to note that the Court must not take into account any misconduct of a spouse in relation to their marriage when assessing the issue of spousal support.
In considering a spousal support application, the Court must take into account the condition (physical, mental), means (finances, assets, liabilities), needs (budget), and any other relevant circumstances of the spouses including, the length of cohabitation, the functions or roles performed by each spouse during the cohabitation (breadwinner, homemaker, child care provider) and any Order, agreement or arrangement relating to the support of each spouse.
Parliament has legislated a number of objectives that the Court must consider when analyzing an application for spousal support, namely:
The recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; the financial consequences of the care of any child of the marriage over and above the basic Section 3, 7, or 9, the obligation to pay child support for that child; the relief of any economic hardship of the spouses arising from the breakdown of the marriage, and insofar as is practicable, the promotion of the economic self-sufficiency of each spouse within a reasonable period of time.
Priority is given to child support
It is important to know that where the Court is considering an application for child and spousal support that priority will be given to child support.
Spousal Support Advisory Guidelines – SSAG
The Federal Government has published the Spousal Support Advisory Guidelines. (SSAG) These spousal support guidelines are advisory and not binding on the Court but are a useful tool for litigants and the Court to assess ranges of spousal support in different economic and factual circumstances. Many Court of Kings’ Bench and Appellate level cases refer to the SSAGs in their decisions. It is important to understand that the Guidelines do not determine a spouse’s entitlement to spousal support and are not to be used unless entitlement to spousal support is established. The usual rule is to assess entitlement to spousal support first. Only if entitlement is established is the amount of spousal support, frequency of payment, and duration of spousal support payment determined, and the SSAG may be referred to in that determination.
Partner support is the term used when parties are unmarried and fall under the provincial legislation in Alberta, namely the Adult Interdependent Relationships Act (AIR) which sets out the criteria for determining if partners are Adult Interdependent Partners (AIPs) which would then entitle a partner to apply for support under the Alberta Family Law Act (FLA). In order to be an AIP, the person must have lived with the other person in a relationship of interdependence for a continuous period of not less than three years or of some permanence if there is a child of the relationship by birth or adoption, or if the person has entered into an AIP written agreement with the other person which complies with the AIR.
An AIP may apply for partner support under the Alberta Family Law Act where the factors, objectives, and rules similar to the Divorce Act spousal support apply. When assessing the factors and objectives to be considered by a Court, once again, establishing entitlement to partner support is essential before the amount, frequency, and duration of support payment is determined.
Spousal and partner support issues are extremely complex and engaging experienced legal counsel is highly recommended when properly preparing and advancing such a claim as there is a huge body of case law that governs this topic.