How is Entitlement to Spousal Support Determined?Moge v. Moge, [1992] 3 SCR 813 and Bracklow v. Bracklow, [1999] 1 SCR 420 are two of the major Supreme Court of Canada decisions that deal with entitlement to spousal support. These decisions define three categories of entitlement to spousal support: compensatory, non-compensatory and contractual.

Contractual spousal support is support that the parties agree to in a contract, for example, in a separation agreement. The Supreme Court of Canada has said that spousal support agreements are entitled to great respect, but are not necessarily determinative (Miglin v. Miglin, 2003 SCC 24). This means that Courts will only set aside the wishes of the parties as expressed in a contractual agreement in situations where the applicant shows that the agreement is not in substantial compliance with the overall objectives of the Divorce Act (for example, if the agreement was signed under circumstances of oppression or pressure).

Compensatory spousal support is normally awarded because of an economic disadvantage caused by the marriage. For example, one spouse’s role during the marriage may have involved child-rearing and homemaking and resulted in a reduction of that spouse’s earning capacity. Compensatory support was explained by Conrad J.A., speaking for the Alberta Court of Appeal, in Corbeil v. Corbeil, 2001 ABCA 220, at para. 44:

Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered the marriage. Rather, the question is what was that spouse’s contribution to the marriage and was the other spouse advantaged by that contribution.

Non-compensatory spousal support is needs-based support. This type of support acknowledges that married couples often become economically interdependent, and after a marriage breakdown, one spouse may require support from the other to continue to meet their basic needs. Non-compensatory support may also be awarded if one spouse’s standard of living significantly declines from the standard they enjoyed during the marriage. Non-compensatory support is not as conducive to analysis using the Spousal Support Advisory Guidelines as a reference point as is compensatory support. It is usually more appropriately addressed by looking at the recipient’s budget and the payor spouses’ ability to pay.