Section 30 of the Family Law Act RSO 1990 cF3 (FLA) and section 15.2 of the Divorce Act RSC 1985 c3 (DA) outline a spouse’s obligation to provide spousal support. In relationships where the parties are not married to each other but are in “marriage-like relationships,” spousal support may be owed to your partner under the FLA and adjusted according to dependency.
If the parties are married, they would claim spousal support under the DA. In respect to relationships that are reaching the 20th year of marriage or longer, the Spousal Support Advisory Guidelines indicate this may create obligations where the spousal support duration may be indefinite. The same obligation may occur if a minimum of 5 years of marriage and the age of the recipient add up to 65 years or more (Rule 65).
When the party seeking support does not fall under the 20-years or more marriage rule or Rule 65, the party seeking support would argue the general approach. The general approach entails the support seeker to show that they have suffered some form of emotional or mental damage resulting in economic loss or hardship due to the break down in the relationship. The leading SCC case Morge v Morge 1992 3 SCR 813, 99 DLR (4th) 456 established that the purpose of spousal support is to relieve the economic hardship that resulted from the breakdown of the relationship.
However, there is a separate approach available to a party seeking spousal support. In Bracklow v Bracklow 1999 1 SCR 420the SCC widened the scope for spouses to receive support in cases where the separation led to economic hardship. Following the Bracklow case, courts have lowered the threshold so that support entitlements are not unreasonably inaccessible. Only when the spouse has not suffered economic disadvantage or where there is no pattern of economic dependency will the court be concerned about granting support obligations.
The party seeking support would need to establish three factors which may prove difficult if the length of time since the relationship broke down is significant. Rezel v Rezel, 2007 OJ N 1460 outlined the three common guidelines for claiming spousal support based on dependency:
- the length of time after the separation before the need arose or the claim was made;
- the degree of economic independence during the marriage; and
- the court’s finding that the partner had not been serious about returning to the full-time work force.
In economic dependency cases, the court are inclined to step-in and award support to reflect the pattern of dependency created by the relationship. For example, in Gray v Gray 2014 ONCA 659,the ONCA held that the purpose of spousal support was compensatory support. In Gray, it was held that economic advantages and disadvantages that result from the marriage are to be shared between the parties. Thus, the party seeking support would need to show that they became economically dependent during the relationship.