CANADA Law and Practice Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
Generally, trust claims (including a JFV finding) are available only to non-married spouses. How - ever, the case law has not closed off certain cir - cumstances whereby a married spouse may also have a trust claim, including a JFV. 2.4 Spousal Maintenance Canada has a robust and well-developed body of jurisprudence related to spousal support. In addition to extensive case law, the courts rely on the Spousal Support Advisory Guidelines (SSAGs), which is a set of rules and guidelines for how to fashion an appropriate support order. Spousal support is available to spouses on an interim and final basis. On an interim basis, the court is not required to determine a precise amount and will, in most circumstances, fash - ion an interim order that is intended as a holding pattern until final resolution. The court also has jurisdiction to order partial lump or uncharacter - ised advances on an interim basis. Grounds for Spousal Support Entitlement to spousal support is based on com - pensatory and non-compensatory grounds. Compensatory support is payable when a spouse has made direct or indirect contribu - tions to the marriage and/or the economic suc - cess of the other spouse and suffered an eco - nomic loss as a result of those contributions. A spouse will have a strong compensatory claim if they have sacrificed a job or career trajecto - ry for the family, most commonly for childcare or for the advancement of the other spouse’s career. Strong compensatory claims also exist in traditional marriages where one spouse works outside the home and the non-income-earning spouse works inside the home.
Non-compensatory support is payable when a spouse has suffered economic disadvantage arising from the marriage breakdown. This most commonly occurs in shorter-term marriages where a lower-income-earning spouse will suf - fer economic loss or hardship arising from the physical separation. By way of example, the lower-income-earning spouse may experience job disruption or relocation costs arising from the marriage breakdown. Most spousal support claims have blended entitlement, meaning they are a combination of compensatory and non-compensatory support. Determination of Duration and Quantum of Support The nature of a compensatory claim can inform both the duration and quantum of support. The stronger the compensatory claim, the more likely that duration will be longer and the amount will be higher. The court can order spousal support on a monthly or lump sum basis. Although lump sum spousal support is exceptional, it may be appropriate in cases where income is uncertain and/or a lump sum more appropriately compensates a recipi - ent spouse. Lump sum spousal support may also be appropriate if there are concerns about the payor’s ability to service monthly support in a reliable way. If spousal support is ordered on a monthly (sometimes called “periodic”) basis, the payments can be ordered with or without a termination date or with a structured review. Aside from the nature of the compensatory claim, the quantum of spousal support is deter - mined based on: • the ages of the parties at the time of separa - tion;
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