Q: How is the eligibility of spousal support entitlement determined? After a 10-year relationship, including a two-year marriage, we separated last year and are in the process of dividing assets and negotiating. We are both gainfully employed with no debt so we are each financially independent in that manner. The question arises because one of us makes double in annual salary compared to the other.
Does this in itself qualify as financial hardship? The reality is that although I am not worried about paying rent, I’ve had to downsize to a crummy apartment with roommates because I can’t afford better with my salary unless I dipped into my savings.
—Jeff in B.C.
A: Jeff, spousal support rules fall under federal jurisdiction. In Canada, property and support are two very different issues and are resolved in two very different ways.
And although there are some guidelines and parameters, spousal support can only be determined or set by a judge. However, you and your spouse are able to determine what level and for how long by way of negotiations. In common law, one can sue for unjust enrichment, but you would need to prove that you were eligible for this type of support.
It was once explained to me this way, by a prominent divorce lawyer—support is meant to be a bridge depending on the length of the marriage and whether or not there where children, would be the determining factor on how much and how long support would be awarded.
A short marriage and no children would likely mean no support.
Support is meant to equalize the living standard of both parties if one or the other has contributed to the other spouse earning a higher level of work achievement.
From the information provided in your question, I would say that you are probably not a candidate for support. However, if you feel you should receive some sort of remuneration then I would seek the advice of a divorce lawyer to find out whether or not they felt you should be compensated.
Debbie Hartzman is a Certified Financial Planner, a Chartered Life Underwriter and Certified Divorce Financial Analyst in Kingston, Ont. She is also the author of ‘Divorce is not easy, but it can be fair.’
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