The new Family Law Act has introduced changes to the law of property, parenthood and spousal maintenance. The changes to property and parenthood are more dramatic than the changes to the law regarding spousal maintenance but some changes have been made to the law regarding spousal maintenance.
In order to obtain spousal maintenance there is still a two tier test. The first is to determine if there is entitlement to spousal maintenance and the second is if there is entitlement, what is the appropriate amount and duration of spousal maintenance.
Section 161 of the Family Law Act1 sets out four objectives that the court must consider to determine if there is entitlement to spousal maintenance:
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.
Section 162 of the Family Law Act1 sets out the factors a court must consider to determine the amount of duration of spousal maintenance:
Determining spousal support
162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:
(a) the length of time the spouses lived together;
(b) the functions performed by each spouse during the period they lived together;
(c) an agreement between the spouses, or an order, relating to the support of either spouse.
Case law has produced three conceptual models for determining entitlement. The Supreme Court of Canada in Moge v. Moge2 introduced the concept of compensatory spousal maintenance which states that spouses are entitled to be compensated for contributions to the family and the marriage and losses which they incurred after its breakdown.
Bracklow v. Bracklow3 defined the definition of non-compensatory spousal maintenance which is based on an obligation to look after a former spouse who is in need.
1Family Law Act, [SBC 2011] CHAPTER 25
www.bclaws.ca/civix/document/id/complete/statreg/11025_01
2Moge v. Moge, [1992] 3 S.C.R. 813
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/946/index.do
3Bracklow v. Bracklow, [1999] 1 S.C.R. 420
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1688/index.do
