“There are three bases for entitlement to support, as explained by the Supreme Court in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420: contractual, compensatory, and non-compensatory (also called “needs-based”). The contractual entitlement to support reflects “the idea that parties’ agreements on support should influence their rights and obligations during the marriage and upon its breakup”: Bracklow, at para. 18. Under s. 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a court must have regard to any “order, agreement or arrangement relating to support of either spouse”.
The compensatory basis for entitlement applies “where it would be just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage”: Bracklow, at para. 18. The court in Bracklow, at para. 39, further notes:
Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument.
Lastly, the court in Bracklow, at paras. 40-41, describes the non-compensatory basis for entitlement. This requires:
…[T]he court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application…
…Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense…
These bases for spousal support are complemented by the objectives of variation orders for spousal support set out in s. 17(7) of the Divorce Act:
17 (7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
It is with these policy objectives in mind that the appellant’s motion for a variation in spousal support must be assessed.”