When spouses separate an issue can arise regarding whether or not one of the spouses is entitled to receive spousal maintenance from the other spouse.

 

The Family Law Act1 section 161 sets out the criteria a court will consider in order to determine entitlement:

 

Objectives of spousal support

161  In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;

(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

 

The Divorce Act2 sets out similar criteria at section 15.2(6):

 

Objectives of 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

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

 

There has recently been an interesting decision from the British Columbia Court of Appeal (BCCA), McKenzie v. McKenzie 2014 BCAA 381. In this case two spouses married later in life and the marriage lasted for 12 years. Both spouses had successful careers when they met and continued those careers throughout the marriage. The wife earned in excess of $200,000.00 per year and continued in her career after separation. There were no children from this marriage and it is hard to see that the wife gave up any economic opportunities because of the marriage.

 

The BCCA said that in spite of this the wife was entitled to spousal maintenance because the husband earned significantly more than the wife did and because of this her lifestyle will be reduced post separation.

 

There are several other decisions involving less wealthy spouses where no entitlement to spousal maintenance was found. In Galloway v. Galloway 2006 BCSC 1677 the B.C. Supreme Court stated that “a lower standard of living does not, on its own, constitute an economic disadvantage” which would entitle a spouse to receive spousal maintenance.

 

Deborah A. Todd
Deborah A. Todd

 

 

1Family Law Act, [SBC 2011] CHAPTER 25 http://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html

2Divorce Act, RSC 1985, c 3 (2nd Supp)www.bclaws.ca/civix/document/id/complete/statreg/11025_01