Spousal Support Eh? Sorry, Not Your American Alimony
Spousal Support, Alimony, Divorce, United States, Canada
I tried to pack as many "Canadianisms" into that title as possible, not just the ubiquitous "eh?", but also our cultural tendency to apologise, even if we are not at fault. Canadian spousal support is itself a reflection of our distinctive family law culture and history. We no longer use the terms "alimony" or "maintenance." In this short article, I will spell out some of the distinctive characteristics of our spousal support law, which I can summarise in a series of propositions here:
Before digging in to these specific support issues, it is important to sketch out the Canadian constitutional backdrop and the general structure of family law in Canada. I promise it will be brief, but not necessarily painless.
In Canada, divorce is a matter confided legislatively to the federal government under our constitution. 1 Thus, Canada has a national DivorceAct that addresses parenting/custody, child sup- port and spousal support for divorcing married couples. 2 Apart from divorce, all other family law matters fall under provincial legislation, including the division of family property. 3 This means that the provinces have also enacted legislation affecting spousal support, for those married couples who separate but do not seek a divorce or for common-law spouses. 4 In all the English Canadian provinces and territories, common-law spouses or partners can seek spousal support after cohabiting for two or three years, or where they have a child in a relationship of some permanence. 5 The one province that does not recognise spousal support rights for common-law couples is Quebec, despite its world-record rates of unmarried cohabitation. 6 As we shall see, despite some differences in statutory provisions amongst these federal and provincial statutes, the fundamentals of spousal support analysis are the same.
Rollie Thompson, "Spousal Support Eh? Sorry, Not Your American Alimony" (2019) 41:3 Hous J Intl L 641.