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Deciding on Spousal Support:
The Sad Thing is That You Don't Get to Decide 

When deciding on spousal support, a lot of people are unsure as to what factors need to be considered. 

This is particularly the case if your ex-wife moves in with her new boyfriend. 

Spousal support in Canada is governed by the Spousal Support Advisory Guidelines. Before you look at those Guidelines, however, you have to figure out if someone is entitled to support or not. Let's look at Jackie and Tim's situation. 

Jackie, now 55 and Tim, now 57 were married for 31 years before they separated.

Jackie and Tim’s relationship was a “traditional” relationship.

Jackie stayed at home, cared for their 3 children and took care of the house while Tim worked as a manager in provincial government. Jackie and Tim started their family early while Tim was still in university. Ultimately Tim earned his bachelor’s degree and his master’s degree in business administration. Jackie has graduated from high school but has no other formal training or education.

Tim was adamant that Jackie be a stay at home Mom, like his mother was. Jackie enjoyed staying home with their three kids and raising them. 

When the youngest of the children got older, Jackie began to work part-time cleaning houses to help out with the finances. Tim wanted Jackie to go back to school and get a degree so that she could improve her employment situation. Jackie was not interested despite Tim's ongoing encouragement (well, Tim thought it was encouragement, Jackie thought it was nagging).

After the kids moved out Jackie had a bit of a "mid-life" crisis and decided she wanted to pursue her own dreams and goals for the first time in her adult life. She started traveling on her own. Shortly thereafter, Jackie decided to end her marriage to Tim and started up a new relationship with her scuba instructor, Rob. She met Rob in Mexica while on holiday. Rob lives in Canada half time. 

One year after separation Jackie began living with her boyfriend Rob; she does not pay rent but she does pay some household bills, etc.

In Canada when courts are deciding on spousal support, they apply one or both of two different models. One model is called the compensatory model. This type of support is given to compensate the spouse for the economic disadvantage or opportunity that was lost because of the marriage. For example, this model suggests that Jackie would have gone on to university herself if her and Tim had not elected for her to stay home in the homemaker role.

Deciding on Spousal Support:
Non-Compensatory Spousal Support

The non-compensatory model, on the other hand, is often awarded when someone’s standard of living goes down for no other reason than they no longer have the income provided by the other spouse.

Watch Val Hemminger talk about spousal support: 

Compensatory and Non-Compensatory: To Which is Jackie Entitled?

The key difference is that while compensatory claims for spousal support are based on economic disadvantage from the marriage (for example, loss of opportunity), non-compensatory claims are needs-based claims based on an economic disadvantage created by a loss of the marital standard of living. Non-compensatory relates to the loss in the standard of living rather than the loss of opportunity caused by the marriage. As you can see there are a lot of considerations when deciding on spousal support.

In Jackie’s situation she would be entitled to both compensatory and non-compensatory support.

In Jackie’s case, for example, Jackie’s support would not necessarily terminate once she starts living with Rob, but her non-compensatory support would likely, at least partially, terminate.

So What Happens Now That Jackie is With Her Scuba Instructor, Rob?

Will Jackie’s support from Tim terminate because she has now moved in with Rob?

As with many things in law there is no exact science.  A new marriage-like relationship does not mean automatic termination of spousal support (although it can), but support is often reduced or suspended. When deciding on spousal support, Tim and Jackie will hopefully work out an arrangement together rather than having to go to court to fight about it.

Much depends upon the standard of living in Jackie’s new household. The length of the first marriage also makes a difference. The age of the recipient spouse also influences outcomes.

Because Jackie was married for a long time, is 55 years old, and has no significant marketable skills, this puts her in a situation where her support would likely continue regardless of the new relationship.

There is no question that Jackie is entitled to spousal support. Jackie suffered economic disadvantage from the marriage itself, because she was a stay-at-home mother. Because of her role as homemaker, she did not seek higher education or gain any marketable skills in order to further her career. This is basis for entitlement to compensatory spousal support.

Written by Val Hemminger, lawyer at Hemminger Law Group Westshore