Under the Divorce Act, the courts are to consider section 15 of the Act when dealing with Spousal Support, either interim or final. The issue becomes that the courts generally do not have the time or the full information when they are considering interim support. As Justice Langston put it in Bennett v. Bennett 2005 ABQB 984 “…a complete analysis should be reserved for trial after there has been a full review of the evidence…”
Professor James G. MacLeod opined that most judges in Canada have held that interim support is intended to provide income for dependent spouses from the time that the proceedings are instituted until trial. Professor MacLeod went on to say that the purpose of interim support would necessitate that a trier of fact focus on the parties means and needs and not conducting a fulsome enquiry into the merits of the case. Professor MacLeod’s view has been echoed by the courts: the means and needs of the parties ought to be at the front of mind when a judge is determining interim spousal support.
Considering the means and needs of the respective parties when an application for interim spousal support is made is the only plausible alternative. First, the parties are likely to only have recently separated and if one spouse has not been in the workforce or had a reasonable opportunity to find employment, it may be too early to look at self-sufficiency. Secondly, the parties may not have full financial disclosure to determine the relative economic conditions surrounding the dissolution of the marriage. Thirdly, it is likely that the property issues have not been dealt with. Lastly, the court simply does not have the time to navigate through all of the information in a morning chambers application. A number of decisions from different jurisdictions in Canada have held that the balance of the issues are left better off for the trial judge.
In a 1996 Ontario Court decision, the presiding Justice created a four-part test to be applied for interim support:
1. Does the Applicant have standing to claim support?
2. Is the Applicant entitled to the support?
3. What are the dependents needs?
4. Does the payer have the ability to pay?
This seems very simple and could be easily applied in a 20 minute morning chambers application.
Unfortunately, good counsel have a way of muddying the waters and then judges are hesitant to pull the trigger to award interim support. The issue gets put over to a Domestic Special, costs go exponentially higher, and one party is left hanging for months for something that really is a simple issue.
The reality of the situation on an interim spousal support application is everything is irrelevant except for one fundamental question: Does party A have a need for support & does party B have the ability to pay.
If the trier of fact determine yes, put a band-aid on the issue, and leave the rest for trial.