While obtaining a divorce, one of the parties may seek spousal support. The parties may agree for one spouse to provide spousal support as regular payments or a lump sum. However, if the parties are proceeding with the court to address spousal support, the court would need to determine if they have an entitlement to spousal support. Without an agreement, there are two bases for entitlement to spousal support, compensatory and non-compensatory.
This article will review the different types of spousal support entitlements and factors the court may consider. We will also discuss the types of evidence needed to demonstrate an entitlement to spousal support. Finally, we will examine a recent case, Nickolet v. Nickolet, 2022 ABQB 192, to illustrate how the courts will apply factors for spousal support entitlement.
Entitlement to spousal support is based on four guiding objectives found in the Divorce Act, s. 15.2(6), reproduced below, and the Alberta Family Law Act, s. 60:
Objectives of a spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
The court may also find that a spouse is entitled to spousal support based on a combination of compensatory and non-compensatory factors.
Compensatory spousal support is meant to address the contributions of a spouse toward a marriage. This form of spousal support is meant to deal with any economic loss based on a spouse’s role in the marriage. This would typically include situations where a spouse’s employment was interrupted so that they could assume the majority of parenting or household responsibilities. Compensatory spousal support is meant to provide an opportunity for the disadvantaged spouse to return to work or obtain training to re-enter the workforce.
The analysis focuses on what advantage the other spouse obtained as a result of the disadvantaged spouse’s contribution to the marriage and if it is necessary for it to be shared.
Compensatory spousal support may be applicable where the disadvantaged spouse:
Non-compensatory spousal support is often referred to as the “needs” basis for spousal support. It is meant to address economic hardship that may arise at the breakdown of the marriage. The analysis focuses on a spouse’s needs after the marriage ends rather than contributions or advantages gained from the marriage.
To determine the need, the court must also consider the marital standard of living and any decline in the post-marriage standard of living. This means that non-compensatory spousal support may be available beyond basic needs, as it is meant to provide economic certainty and stability for the spouse to arrange economic self-sufficiency. If a spouse enjoys a high standard of living, they are not expected to continue after the end of the marriage with only their very basic needs being met.
Non-compensatory spousal support captures elements of reliance and expectation that existed in the marriage due to economic interdependency.
In the Nickolet case, the husband claimed compensatory and non-compensatory spousal support.
The parties were married for 15 years and had two children. While the parties lived in Edmonton, the husband worked as a substitute teacher or on a contract basis, and the wife completed her medical degree. The parties then relocated to Halifax so that the wife could complete her anesthesiology program, and she began working at a hospital in Halifax afterward. The husband worked full-time for six years as Athletic Director for a Halifax high school. Still, he resigned after the parties decided to move back to Edmonton, where the wife accepted a full-time anesthesiologist role. The husband also pursued other ventures, such as a firefighter program and a cannabis dispensary business.
During the marriage, the parties primarily employed housekeepers to manage the household and nannies to take care of the children.
After separation, the husband held one short-term teaching role for three months.
During the marriage, the court found that both parties raised the children and managed the household. The husband was not found to be the primary caregiver. The parties also had the help of various nannies and housekeepers, and the husband heavily relied on them for childcare and household duties.
When the husband pursued his cannabis dispensary venture, the wife also reduced her hours to address childcare duties for two years.
Ultimately, the court found that the husband was not the primary caregiver and did not disadvantage his career due to his childcare duties.
However, the court found a modest compensatory claim, as the husband relocated twice to support his wife’s career and gave up opportunities for his teaching career.
The court found that during their 15-year marriage, the parties became economically interdependent. At trial, there was evidence that the parties had significantly different living standards after separation.
For a compensatory claim, one should consider bringing evidence of any disadvantages arising from the marriage, such as giving up career opportunities to support the children or the spouse’s career. Relocating to support a spouse’s career is also a factor for the court to consider, as in the Nickolet case. A spouse can also lead evidence that they acted as the primary caregiver for the children, which impacted their career opportunities.
For a non-compensatory claim, one must lead evidence about the marital standard of living and any decline in the post-marriage standard. This can include evidence of changes to one’s accommodations, expenses, and activities.
Entitlement to spousal support, as well as the amount and duration, highly depends on the facts of the case. You may be entitled to spousal support. You should proactively discuss it with one of our family law lawyers at Mincher Koeman, who are experienced in assisting parties with spousal support claims. Our Calgary family law lawyers are dedicated to finding the best resolution for you after divorce. To book a consultation, please contact us online or by phone at 403-910-3000.
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