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Family Law - Maintenance


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The following is no substitute for advice provided by a lawyer specifically for you. It is intended only to help you understand that advice. No responsibility is taken for any problems arising except due to paid legal advice.

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Introduction

Since 2005, we now focus on Real Estate, Wills and Estates, and Small Business. We have left this web page in place as a public service. This is a summary of the law relating to Maintenance, which is the requirement to pay a contribution to the living expenses of somebody else. See also our pages on general family law, and on Matrimonial Property.


Spousal Maintenance

In the middle ages, when our family law began to develop, marriage was primarily seen as a contract. So, if somebody broke the contract, they paid damages. So fault was the central issue. Adultery, desertion, cruelty, and others, were some of the faults at issue. Generally the man had the financial resources. If the man committed one of the faults, the woman was entitled to leave him and still be maintained "in the style to which she had become accustomed." But if the woman committed the fault first, then the man was entitled to a separation without being obligated to maintain her.

Plainly there was hardship in nearly every case. One side or the other would suffer. The law gradually concluded the suffering was disproportionate and the fault-finding was destructive. So a general rule developed that the man would pay about 1/3 of his income.

As women became wage-earners, such a general rule was inappropriate. In the 1970's, an approach developed based more on tort law than contract. Either spouse would receive maintenance to compensate them for a lost ability to earn income. Generally this meant higher awards for shorter periods. If a spouse had dropped out of school to raise the family, or turned down opportunities like overtime, transfers, promotions, then spousal maintenance would be payable, but only for so long as would reasonably be necessary to recover from the disadvantage. It did a good job of accommodating traditional marriages, where the wife had stayed in the home for most of her life, because she would never reasonably be likely to recover her lost power to earn income, but her lost power wouldn't be that high.

Of course, the amount of maintenance ordered was not always the amount that should be received. It makes no sense to order the payer to make payments which s/he cannot afford. It was expected that such payments would come ahead of debt reduction, and slightly ahead of new family responsibilities, but after basic living expenses. But intentional poverty is not considered a defence. The courts will 'impute' such income to the payer as it seems the payer is capable of earning.

In practice, if a spouse didn't have income, then the courts would usually award interim maintenance, to last until the trial. The courts, in this writer's opinion, didn't worry overmuch about whether the grounds for maintenance were met. The unstated policy was that it was necessary to prevent an inequality in the litigation. If it turned out that at trial it had not been appropriate, the courts had lots of ways to adjust the result.

Many lawyers expressed the opinion that since the tort approach often led to a short term order, it was often not worth litigating if spousal maintenance was the only issue.

But recently, the Supreme Court of Canada issued a confusing but important decision known as the Moge case. It paid lip service to the tort approach of the 1970's, but ruled that the courts were entitled to presume that women had suffered an economic disadvantage from the marriage, unless it was disproved. This begged the question: If we are presuming a disadvantage, and if the maintenance payable depends on the extent of the disadvantage, how much should be presumed?

And that is where we are left.  Interim spousal maintenance is usually ordered for a spouse who doesn't have income, which lasts till the settlement of the other issues. Long term spousal maintenance is proportionate to the loss of income earning ability, limited by the ability to pay of the payer. There is an obligation on the recipient to recover the lost ability as quickly as possible. Women have an unspecified advantage in the disputes.

Spousal Maintenance may be ordered under the Divorce Act between people married or previously married to each other. The Saskatchewan Family Maintenance Act applies to a broad definition of 'spouses' as follows:

(i) a party to a marriage that is voidable and has not been voided by a judgment of nullity or dissolution of marriage;
(ii) for the purpose of proceedings to enforce or vary an order, a party to a marriage with respect to which an order for divorce, dissolution of marriage or decree of nullity has been made; or
(iii) either of a man and woman who are not married to each other and have cohabited as husband and wife:
(A) continuously for a period of not less than three years; or
(B) in a relationship of some permanence, if they are the birth or adoptive parents of a child.



Child Maintenance

The development of the law of child maintenance is long and complex. At one time, the law even distinguished between legitimate and illegitimate children. Though improving, there are still two main sources of the law, the federal Divorce Act for children of married parents, and the Saskatchewan Family Maintenance Act for any children, though normally applied only to children of unmarried parents.

A person can be obligated to pay child maintenance even if they are not a natural parent. The Divorce Act defines "child of the marriage" to include:
 

(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent.


The Family Maintenance Act defines 'parent' as:

(i) the father or mother of a child, whether born within or outside marriage;
(ii) the father or mother of a child by adoption; or
(iii) a person who has demonstrated a settled intention to treat a child as a child of his or her family, other than a person who is providing foster care services as defined in The Child and Family Services Act;
Consequently, it is quite possible to have more than one 'fathers' paying child maintenance for the same child.

Until recently, maintenance was theoretically calculated by:

  • 1. calculating the needs of the child
  • 2. dividing the needs between the parents according to their proportionate abilities to pay
  • 3. increasing the amount payable by considering the value of the contribution made by being the child's custodian (such as shelter, cooking, cleaning, supervision, education, etc.)
  • 4. reducing the amount to the ability to pay of the payer
  • 5.  adjusting that amount to eliminate tax consequences.
  • In practice, the awards were somewhat unpredictable. It was difficult or impossible to explain differences in awards of maintenance between different cases. However, generally in Regina, the lowest you would see was $50.00 per month, the norm would be $350.00 per child, reduced somewhat if there were many children. Between wealthy people, for whom there were severe tax consequences, awards could be much higher, sometimes in the thousands of dollars per month per child.

    Recently, a federal-provincial task force analyzed the current practice in Canada and concluded that a concrete calculation scheme would improve matters. Such a scheme was implemented and is adopted by both federal and provincial law.

    Tax consequences were eliminated by changes to the Income Tax Act. It is important to note that for most families, although the elimination of income tax on maintenance received was widely called for by the public, it reduces the total family money available by increasing the overall family tax. Previously, generally the non-custodian earned more, and was in a higher tax bracket. The non-custodian was generally earning less, if any, and so was in a lower tax bracket. So the amount saved by deducting the maintenance by the payer was more than the amount it cost the payee to declare the maintenance. This was known to lawyers and courts and relied upon in determining the ability to pay. In short, this change was the most popular tax grab in history.

    The scheme is to use a rough justice. Rather than considering every material fact, most cases are to be decided with a simple mathematical calculation. What the system loses in justice, it hopes to make up for in speed, certainty, and the elimination of costly and stressful litigation.

    Under these calculations, generally the income of the payee is ignored altogether. There is a table for each region. One merely looks up the income of the payer, goes to the column representing the number of children, and reads the monthly amount payable. It sounds simple, but there are many special cases.
     

  • 1. Intentionally low income - If the court concludes that the payer is deliberately keeping his/her income low, it can 'impute' income (pretend it is higher). The amount to impute cannot be pre-calculated.
  • 2. Self-employed persons
  • a. Since they often receive the benefit of the business expenses, such as the use of a car or computer or a share of the home expenses, etc., income is 'imputed' to compensate
  • b. Since they can claim expenses for which they haven't paid (yet), such as depreciation, accrued interest, etc., their ability to pay is higher than it may appear, and income is again 'imputed'.
  • c. It appears the legislators and the courts often suspect self-employed people of not declaring income. This must be the unspoken justification for some decisions.
  • 3. Shared parenting - If the payer looks after the child more, surely s/he is contributing more. The guidelines impose a rough justice. If it is more than 40% of the child's time, no maintenance is payable. Otherwise, it is unadjusted. At the time of writing, it still wasn't clear whether that refers to hours of the day, waking time, leisure time or some other measure.
  • 4. Split parenting - Where one parent has some of the children and the other has the other children - Since the ability to pay may be different, there might be still some payable. The guidelines direct that the amount payable for both be calculated, but only the difference between them must be paid.
  • 5. Special expenses - Some children have special needs. So there is provision for the court to order that a proportionate share of expenses be paid. Since there is no certainty what expenses will be considered 'special', litigation is common.  The guidelines permit only the following types, although they are broad enough to include almost anything. But the courts require that they be both special, in the sense of 'out of the ordinary' and 'reasonable' in the sense of being to the genuine benefit of the child and within the means of the parties.
  • (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
  • (b) that portion of the medical and dental insurance premiums attributable to the child;
  • (c) health-related expenses that exceed insurance reimbursement by at least $100 annually per illness or event, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
  •  (d) extraordinary expenses for primary or secondary school education or for any educational programs that meet the child's particular needs;
  • (e) expenses for post-secondary education; and
  • (f) extraordinary expenses for extracurricular activities.
  • 6. Hardship - The guidelines provide that if there is hardship, the courts may adjust the amount of maintenance, but no adjustment will be made unless the payer's household standard of living is less than the other party's. The decision making is as follows:
  • a. a payer must claim hardship
  • b. if so, the court decides if there is actual hardship
  • c.  if so, the court decides if the hardship was caused by one of the following permitted causes. In fact, the Guidelines speak of these as mere examples.
  • (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

  • (b) the spouse has unusually high expenses in relation to exercising access to a child;

    (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

    (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

    (i) under the age of majority, or

    (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

    (e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
  • d.  if so, the court decides if the applicant's household standard is lower
  • e. if so, the court makes the adjustment.
  • 7. Fluctuating Income - The court has a variety of choices of how what period to use to average the income. Such situations are generally cases where the court is asked to impute income too.
  • 8. Wealthy payee - Even if the payee is far more wealthy than the payer, it doesn't matter unless it falls under hardship.
  • These are just some examples of the special situations. Since most call for the exercise of discretion, there is still plenty of uncertainty, and therefore still plenty of litigation. But the litigation is more complex, trying to force facts into permitted categories which the courts will be entitled to consider.

    You may be interested in exploring some of the government's web sites relating to the Child Support Guidelines.

    Federal Child Support Guidelines
    Federal Child Support Guidelines - Downloadable
    Introduction To Federal Child Support Guidelines
    Federal Child Support Guidelines - Caselaw
    Divorce Act

     

    Note that Provincial legislation will apply if parents were never married to each other, or were married, have separated, but are not getting a divorce.


    Enforcement of Maintenance

    In the past twenty years, the enforcement of payment of maintenance has improved tremendously. The provincial government has created the Enforcement of Maintenance Office. A payee can register a maintenance agreement or order, and the EMO will then enforce it. The EMO has access to many governmental databases which are otherwise confidential. EMO has extraordinary powers to garnish money in a rapid way and from many otherwise immune sources of payment.

    Even if a payer leaves the jurisdiction, enforcement is still reasonably effective. There is a treaty for the reciprocal enforcement of maintenance in standard form. Just about every province and country has signed it with just about every other province and country. So access to data, and to the enforcement mechanisms of the foreign jurisdiction are reasonably easily available.

    In addition to the usual debt collection mechanisms of seizure of property or garnishment of debts and wages, a non-payer can be cited for contempt of court, and must show cause why they should not be jailed.

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    Office Kevin Jaques, B.A., LL.B.
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