FAMILY ASSETS
CUSTODY/GUARDIANSHIP
mildred@heatherdalelaw.com
When do I receive/pay interim child and/or spousal support?
With respect to child support (permanent and interim), both parents have an ongoing legal obligation to support their children. The objectives of the Federal Child Support Guidelines (FCSG), are: (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances.
Interim spousal support can be ordered pursuant to s. 15.2(1) of the Divorce Act or ss. 161 and 162 of the Family Law Act.
Under the Divorce Act, the court shall take into consideration the "condition, means, needs and other circumstances" of each spouse, including: (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. The objectives of a spousal support order under the Divorce Act are: (a) to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;(b) to 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) to 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.
The objectives and criteria regarding interim spousal support as set out in the Divorce Act are essentially mirrored in ss. 161 and 162 of the FLA. The main purpose of interim spousal support is to bridge the period between when the action is commenced and the trial: M. (D.R.) v. M. (R.B.), 2006 BCSC 1921; Goriuk v. Turton, 2011 BCSC 652.
Because interim orders are summary in nature and temporary, they provide a rough justice at best: Newson v. Newson (1998), 65 B.C.L.R. (3d) 22 (B.C. C.A.). The "rough justice" approach to interim spousal support recognizes that the evidence on the interim application is often insufficient to permit an in-depth analysis of the relevant factors. The legal test governing interim spousal support is: the relevant factors that inform the issue of spousal support are to be considered to the extent possible, but the respective needs and means of the parties are the central factors on an interim application. Considerations such as compensatory factors and the need to achieve self-sufficiency are less significant: G. (R.C.). v. G. (C.L.), 2010 BCSC 1596.
In Goriuk v. Turton, 2011 BCSC 652127, the court pointed out that an interim spousal support order should consider: (a) needs; (b) ability to pay or means; and (c) a presumptive claim to an equal standard of living subject to an equal sharing of the consequences of the dissolution of the marriage. The third criteria is based on a Supreme Court of Canada case Moge v. Moge (1992), 43 R.F.L. (3d) 345. However, in the interim setting the court may be limited as to by the extent and reliability of the evidence. "Means" has been defined by the court as including "all pecuniary resources, capital assets, income from employment or earning capacity and other sources from which the person receives gains or benefits" M. (P.R.) v. M. (B.J.), 2013 BCCA 327. "Needs" does not mean "enough to survive." It means that wherever possible, interim support should permit the recipient to continue to live at the same standard of living as before separation: Robles v. Kuhn, 2009 BCSC 1163.
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