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Ross Macdonald

Spousal Support - The Threshold Question of Entitlement

The adoption of the Spousal Support Advisory Guidelines has injected a much-needed level of standardization into what was previously an unsatisfactorily unpredictable area of Family Law. The guidelines use a complicated and nuanced set of criteria to generate a suggested range for both the amount of spousal support and the duration of spousal support. The system is something of a “black box” in that the user inputs the requested information and the computer program generates the numbers. The mechanics and the formula used by the computer program are unexplained to the user.

But it is not as simple as it may seem. There are many errors that can be made, and often are made, even by experienced lawyers, in inputting the data and failing to make note of exceptions and variations of numerous kinds.

The most fundamental, and one of the most common, errors is to fail to consider the “threshold” question of entitlement. The Spousal Support Advisory Guidelines generate a range of support to be applied if spousal support is payable. The Spousal Support Advisory Guidelines do not address the key initial question which should be asked; whether or not spousal support is payable at all. The Guidelines do not deal with the fundamental first issue of entitlement.

The case law is clear that a mere disparity of income levels may not automatically lead to entitlement to spousal support. Analysis is required to determine why there is an income disparity and how that relates to the legal requirements to trigger entitlement.

Spousal support entitlement can arise from three main well recognized considerations:

  1.  To compensate a spouse for hardship or opportunities lost due to the marriage or its
  2. To assist a spouse in financial need, when the other has capacity to pay, called non-
    compensatory support; and
  3. To fulfill a contractual agreement arising from a Marriage Contract or, in some instances,
    an implied contractual agreement.

If none of those three considerations apply, there may be no obligation for spousal support, no
matter how great the disparity in income and no matter what amount or duration of spousal
support is generated by the Spousal Support Advisory Guidelines.