Unlike child support, spousal support is not automatic.
Once a party applies for an order for spousal support, he or she must “qualify” to receive it and the process of determining if a party qualifies is referred to as determining “entitlement”.
There are three bases for entitlement: contractual (meaning the parties already agreed in writing that one would pay spousal support to the other, for example in a prenup); compensatory (to compensate the recipient for contributions or sacrifices made during the relationship); and need-based. A party can apply to court for spousal support if he or she was married to the other party; was a common-law spouse with the other party for at least two years; was a common-law spouse with the other party for any length of time and had a child with the other party.
Spousal support is generally payable if one party stayed home with children while the other pursued a career, if one party sacrificed career opportunities to move residences with his or her spouse or common-law spouse or to support the other party in his or her career aspirations; or if one party is unable to support him- or herself adequately for any reason while the other party can. Once entitlement to support has been determined, the next steps are to determine the amount and duration of support.
The Spousal Support Advisory Guidelines are widely used to set the amount and duration of support payable, however, they are not law like the Federal Child Support Guidelines. They calculate support payable based on a sharing of net disposable income after considering tax issues and child support payable. The determination of the amount and duration of spousal support is far from black and white. The outcome in court or in settlement discussions will depend on many facts and factors that need to be argued before a judge or negotiated in discussion. Some facts and factors are: income of both parties; whether both parties worked during the relationship; how long the relationship lasted; whether either party has problems supporting him or herself; and differences in incomes. Like child support, sometimes a complicating factor is the determination income. A person’s income for the purpose of support is not always the income they report on their tax return. There is a time-limit for applying for spousal support, which within two years of separation for common-law spouses. Married spouses have the same limit under the FLA, but can apply at any time under the Divorce Act. As with child support, once an order is made, it can be varied or cancelled by consent of the parties or by an application to court.