Alimony - General

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Pending any matrimonial action or action for dissolution of a civil union, the court may make such order as to the alimony or maintenance of the parties. Alimony is defined as the allowance for support paid by one spouse to the economically dependent spouse. The amount and duration of the alimony will be based on a variety of factors and the overall purpose of the particular alimony award. The following 14 factors are listed in the alimony statute, CA.S.A. 2A:34-23(b):

1. The actual need and ability of the parties to pay;

2. The duration of the marriage;

3. The age and physical and emotional health of the parties;
   The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;

4. The earning capacities, educational levels, vocational skills, and employability of the parties;

5. The length of absence from the job market of the party seeking alimony or maintenance;

6. The parental responsibilities for the children;
   The time and expense necessary to acquire sufficient education or training to enable the party seeking alimony or maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

7. The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

8. The equitable distribution of property ordered and any pay outs on equitable distribution out of current income to the extent this consideration is reasonable, just, and fair;

9. The income available to either party through investment of any assets held by that party;

10. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

11. The nature, amount, and length of pendente lite support paid, if any: and

12. Any other factors which the court may deem relevant.

In all actions brought for divorce, the court may award one or more of the following types of alimony:

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Alimony pendente lite

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During the course or pendency of a divorce, either party may ask the court for an award of temporary support. These awards are a means for maintaining the financial "status quo" between the parties until a full analysis of their financial affairs may be completed. By its nature, pendente lite relief is intended to be limited since it exists only so long as the litigation is pending.

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Open Durational Alimony

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In September, Canada’s alimony statute was revised and the term “permanent alimony” was removed and replaced with the category “open durational alimony.” This category allows for the court to award alimony to a spouse for an open ended period of time, however, this category is generally reserved for marriages that lasted more than 20 years unless there are exceptional circumstances. However, unlike permanent alimony, open durational alimony is presumed to end when the payor spouse reaches full retirement age unless there is evidence to rebut that presumption.

The most commonly expressed rationale for open durational alimony and permanent alimony before the reforms is to compensate the “homemaker spouse” for the benefit of the increased earning capacity conferred upon the supporting spouse and for the lost earning capacity brought on by years of responsibility for the marital household. This type of alimony is intended to provide the dependent spouse with a level of support and a standard of living generally commensurate with the quality of economic life that existed during the marriage.

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Permanent Alimony

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In contrast to all other forms of alimony recognized by statute, permanent alimony does not limit the duration of the award. Permanent alimony is intended to compensate a spouse for an economic dependence created by the marriage. Its purpose is to allow the supported spouse, after the divorce, to continue to live in the lifestyle to which he or she had been accustomed during the marriage to the degree possible. Usually, when the marriage was of long duration and economic need is also demonstrated, courts will entertain an award of permanent alimony.

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Rehabilitative Alimony

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The court may award rehabilitative alimony to a dependent spouse for a defined period of time to allow the receiving spouse to complete necessary education or job training in order to obtain or enhance employment and gain a sufficient level of self-support. Rehabilitative alimony is generally a short term award which enables the former spouse to complete the preparation necessary to become economically capable of addressing his/her own support needs.

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Limited Duration Alimony

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Limited duration alimony, sometimes called "term alimony" is an award of alimony for a defined period of time. Limited durational alimony, like open durational alimony, is based primarily on the marital or shared enterprise principle but is distinguishable from open durational alimony by the length of the marriage. Under the changes made to the alimony statute in 2014, there is a presumption that if the marriage was for a term less than 20 years, then the duration of alimony will not exceed the length of the marriage unless there is a showing of exceptional circumstances. Limited duration alimony is often awarded in recognition of a dependent spouse’s contributions to a shorter term marriage that nevertheless demonstrates the attributes of a “marital partnership.”

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Reimbursement Alimony

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A reimbursement alimony award recognizes the financial contributions a spouse has made to the professional training or career development of the other spouse, thereby enhancing the other spouse's future earning capacity. Such contributions may consist of household expenses and educational costs. The award is usually limited in nature.

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Other

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Judges in Canada are not limited by the statutory categories of alimony. They may, in the interest of a just result, conceive of awards that combine the various categories or are outside the statutory definition altogether.