Recent case law in Nova Scotia emphasizes that in Canada, spousal support should not be automatically prolonged solely based on one spouse's failure to achieve self-sufficiency.

Society's Responsibility and the Right to a "Clean Break"

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”.

The concept of a "clean break" emphasizes the idea of finality and closure after a divorce. It is based on the understanding that both parties should be able to move forward without lingering financial ties to one another. This principle acknowledges the emotional toll that ongoing financial obligations can have on individuals and seeks to provide them with a fresh start.

While society's obligation to support those in need is crucial, it is equally important to ensure that no one is unfairly burdened by endless financial responsibilities. A well-balanced approach, taking into account the circumstances of both parties, can help achieve a just and equitable resolution in divorce cases, allowing each individual to rebuild their lives with a sense of security and independence.

Duration of Spousal Support Awards for Disabled Spouses

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.

Flexibility and Changes in Spousal Support Orders

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.

“Restructuring" Spousal Support for Disabled Spouses

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. Adopting the restructuring model, not only eases the financial burden on the paying spouse but also empowers the disabled spouse to transition towards financial independence gradually.

It is important to note that restructuring spousal support is not applicable in all cases and should be carefully considered in the context of each unique situation. Consulting with a qualified family law attorney is crucial to determine the feasibility and appropriateness of this approach based on the specific circumstances of the disabled spouse and the paying spouse.

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 or 902-466-2200 to schedule an initial consultation.