Family Lawyers Explain Spousal Support Entitlement

When two people enter a relationship, whether married or common law, they often find their lives financially intertwined. As family lawyers, we know that this can take many different forms. Both may choose to continue working, creating a dual income household. Other times, one person’s career will take a “back seat” to the other’s, allowing one to succeed and grow in their chosen field. In some circumstances, one person may remain at home to care for the children or household, foregoing a career and/or employment entirely.

Family law and financial consequences

The manner in which couples choose to structure their relationship, household, and careers can be problematic upon separation and may have serious financial consequences for one, or both, of the parties. In these circumstances, spousal support may be appropriate. Spousal support claims are one of many family law services that we help our clients with.

Spousal support is a payment made by one party to the other following separation. It is also sometimes referred to as “alimony”. Married couples are able to apply for spousal support under the Divorce Act, and common law couples are able to apply for spousal support under the Parenting and Support Act. Spousal support differs from child support, as its purpose is not for the benefit of the child. Rather, spousal support is awarded for the benefit of the spouse and can be awarded in circumstances where there are no children of the marriage.

Spousal support entitlement

When looking at a spousal support claim, a party must establish entitlement to spousal support. There are three primary categories under which a person can claim spousal support. Compensatory claims are aimed at exactly that – compensation for the roles adopted during the relationship which have resulted in an economic disadvantage to one party. Non-compensatory claims are claims involving financial “need.” And the final basis on which a person can claim an entitlement to spousal support is a “contractual basis”, involving an agreement or contract between parties.

Spousal support can be a complex issue to navigate and is often very fact specific. If you have questions about whether you are entitled to spousal support, or if you may be held responsible to pay spousal support, please contact one of our family law lawyers to schedule a consultation.

Deducting Your Legal Fees: A Guide this Tax Season

As tax season approaches, it is beneficial to be aware of what expenses you may be entitled to claim as deductions.

If you incurred legal fees for the purpose of collecting, receiving, or securing child support or spousal support, you can claim those legal fees as a deduction at line 221 of your income tax return. It’s important to note that only the receiving parent or spouse can claim their legal fees as a deduction.

The tax deductible legal fees may relate to collecting late support payments, establishing an amount for support payments, or efforts to vary support to a higher amount. Unfortunately, legal fees paid to get a separation or divorce, or to establish custody of or visitation arrangements for a child cannot be claimed at line 221.

Every January we review our clients’ accounts and determine the percentage of time and effort spent on their file that relates to their claims for child and/or spousal support.  We then send our clients who qualify for a deduction, letters outlining our opinion of the percentage of their legal fees they are entitled to deduct. The client can provide their letter to CRA as a receipt.

We offer these letters free of charge to our clients because we believe that individuals and families should enjoy the maximum income and benefits available to them by law.

For more information about tax and family law please see “Tax Matters Toolkit for Clients”, a publication of the Canadian Bar Association, available at:

https://www.cba.org/getmedia/f2e8bcce-3fed-45f2-bcde-db1f8d28bbd6/Tax-Matters-Toolkit-Lawyers-Eng.pdf

Deducting Your Legal Fees: A Guide this 2018 Tax Season

As tax season approaches, it is beneficial to be aware of what expenses you may be entitled to claim as deductions.

If you incurred legal fees for the purpose of collecting, receiving, or securing child support or spousal support, you can claim those legal fees as a deduction at line 221 of your income tax return. It’s important to note that only the receiving parent or spouse can claim their legal fees as a deduction.

The tax deductible legal fees may relate to collecting late support payments, establishing an amount for support payments, or efforts to vary support to a higher amount. Unfortunately, legal fees paid to get a separation or divorce, or to establish custody of or visitation arrangements for a child cannot be claimed at line 221.

Every January we review our clients’ accounts and determine the percentage of time and effort spent on their file that relates to their claims for child and/or spousal support.  We then send our clients who qualify for a deduction letters outlining our opinion of the percentage of their legal fees they are entitled to deduct. The client can provide their letter to CRA as a receipt.

We offer these letters free of charge to our clients because we believe that individuals and families should enjoy the maximum income and benefits available to them through law.

Further information can be found on Canada Revenue Agency’s website: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/ddctns/lns206-236/221/menu-eng.html.

Disputes over Pets: A Dog’s Chance at Achieving the Cat’s Meow

Pets are very loved by their owners and often viewed as family members akin to children. However, the law does not treat family pets the same as it does children for the purposes of custody and access.

For children, the court is always guided by the “best interests” of the child.  In contrast, under the law, animals are considered personal property. As such, disputes between people claiming the right to possess an animal are determined on the basis of ownership, or agreements as to ownership, rather than considerations of “the best interests” of the pet.

That being said, the law in jurisdictions outside of Nova Scotia may be starting to recognize a more nuanced approach for addressing possession of pets in separations involving married couples. Courts are able to treat a pet’s status as family or matrimonial property to ground an order for possession of, or essentially access to, that pet by a former spouse.

With respect to common law couples, in the recent Nova Scotian decision of MacDonald v. Pearl, 2017 NSSM, Adjudicator Richardson noted: “…the fact that people in a common law relationship may view their pets as akin to children gives rise to the possibility of agreements—whether express or implied—as to what might happen to the animals in the event the people separate”.

In MacDonald v. Pearl, the Small Claims Court addressed a dispute over two Yorkshire Terriers, brothers Henry and Daniel. Essentially the court determined that Henry was purchased by Mr. MacDonald as a companion for Ms. Pearl because Ms. Pearl was lonely. Accordingly, Ms. Pearl was awarded Henry.

The other dog, Henry’s brother Daniel, was purchased by Mr. MacDonald because Mr. MacDonald did not want to leave Daniel, the last of the litter, alone.  Mr. MacDonald was awarded Daniel, which somewhat ironically separated the siblings.

In a case involving sibling children, the court will heavily consider the children’s bond to each other when analyzing their best interests. As indicated above, because pets are classified as personal property, the court is not able to consider their best interests, and so the court cannot consider the relationship between animal siblings.

With the state of the law as it is now, working out an agreement on pet ownership or access directly between the parties is the best way to properly recognize the love and companionship people share with their pets, as well as what arrangements are in the pet’s best interests after separation.  

Deducting Your Legal fees: A Guide this Tax Season

As tax season approaches, it is beneficial to be aware of what expenses you may be entitled to claim as deductions.

If you incurred legal fees for the purpose of collecting, receiving, or securing child support or spousal support, you can claim those legal fees as a deduction at line 221 of your income tax return. It is important to note that only the receiving parent or spouse can claim their legal fees as a deduction.

The tax deductible legal fees may relate to collecting late support payments, establishing an amount for support payments, or efforts to vary support to a higher amount.

Every January we review our clients’ accounts and determine the percentage of time and effort spent on their file that relates to their claims for child and/or spousal support.  We then send our clients who qualify for a deduction letters outlining our opinion on the percentage of their legal fees they are entitled to deduct. The client can provide their letter to CRA as a receipt.

We offer these letters free of charge to our clients because we believe that individuals and families should enjoy the maximum income and benefits available to them through law.

Further information can be found on Canada Revenue Agency’s website: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/ddctns/lns206-236/221/menu-eng.html.

Understanding Spousal Support in Canada: What You Need to Know

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.