Recent case law in Nova Scotia makes it clear that one spouse’s failure to attain self-sufficiency should not automatically result in a continuing obligation for the paying spouse.
Judges frequently acknowledge that society as a whole has a responsibility to individuals who are unable to work that must be balanced with the responsibility of the supporting spouse. The Court looks to find a balance between one spouse’s need for support and the other spouse’s need for certainty with respect to their obligations and right to have a “clean break”.
There has been reluctance from judges to order indefinite spousal support awards for disabled spouses in medium length marriages (6 to 19 years). However, cases where the receiving spouse is suffering from an ongoing disability typically result in longer-term spousal support awards than what is generally awarded to receiving spouses who have decent employment prospects.
The spousal support awards for disabled spouses are generally around the length of the marriage. This is the top end of the range for duration contemplated by the Spousal Support Advisory Guidelines for medium length marriages.
Like all spousal support orders, orders for disabled spouses can be varied if circumstances later change. For example, if the receiving spouse recovers and is able to return to his or her occupation or some other form of employment then support can be varied or terminated depending on all of the other circumstances. The support award could also be varied if the receiving spouse begins receiving CPP disability or other disability benefits.
In some disability cases, what is called “restructuring” can be applied. Essentially this where the quantum of spousal support is reduced but paid for a longer duration. The benefit with this approach is that in certain situations it can guarantee the receiving spouse some income until they can access CPP, a private pension, or Old Age Security at 65.
Spousal support is one of the most complex aspects of a divorce or common law separation. The quantum and duration of the award depend heavily on the specific facts of each case. Whether you are the payor or payee, it is recommended that you discuss your case with a lawyer. The Divorce and Family Law Lawyers at Lenehan Musgrave LLP are experienced in spousal support applications. Please contact us at: http://www.lenehanmusgravelaw.ca/consultation/ or 902-466-2200 to schedule an initial consultation.