****NOTICE: This is not legal advice nor is it intended to be relied upon as such, it is merely for conversational and anecdotal purposes. Please contact a legal professional before taking any steps and do not rely on this material for legal purposes.
The Complexity of Setting Spousal and Child Support
In examining the Divorce Act and the Federal Child Support Guidelines, at first blush one might think that the grounds for setting spousal or child support seem straightforward enough. However, every relationship and marriage is different; the factors vary from case to case and as such judicial discretion in such matters is essential. With the necessity of such discretion, case law becomes more and more important and a close professional analysis into the intricacies of these laws is clearly necessitated by the complexity and nature of such matters.
In determining quantum for spousal support, need is an important factor, however, case law mandates that in assessing the specificities of the relationship, contribution to the marriage is essential to determining need. The law recognizes that some create their own need and will not award any type of support for such creation. This trend coincides with the duty of promotion of economic self-sufficiency, as per under the Divorce Act.
The grounds for setting child support is set out in the Guidelines, however case law puts forth that a deviation may be warranted depending on certain factors. The condition/means of the parents and the needs of the child are among the most important factors that judges consider. However, in proving undue hardship on either side of the case, although a high threshold to surpass, can drastically change the amount of child support.
A child support or spousal support order is not calcified. That means that they can be changed. As such, a variation may be necessary when circumstances change. It is essential to prove a “material change” in circumstances in order to get such a variation; any change, like a move or change in careers is not likely to be considered “material”.
Generally, the legalities and jurisprudence in this particular area are full of complex analyses and judicial discretion. Nonetheless, support quantum warrants further discretion and examination because of the nature of the tribulations involved. In order to ensure fairness in every case, we need variability in the law, as the fact-specific nature of the field demands it.