In previous columns, I have discussed the issue of spousal support.

The prerequisites for spousal support are need and ability to pay. In other words, if one spouse needs support at the time of the divorce and the other spouse has the ability to pay, the court will usually older that spousal support be paid.

The question that clients frequently ask is: "For how long?" "When does the obligation to pay, terminate?" "If the parties are 40 years old at the time of the divorce, should the payer make payments for the rest of his or her life?"

The courts have been quite reluctant to impose time limits on spousal support. Usually, the best that the payor can hope for is a review three years or so down the road. At that point, the court can assess whether the dependent spouse has made reasonable efforts to become independent If no such effectshave been made then the court could terminate the support.

A recent case which dealt with this subject was Bildy v. Bildy (1999) 44 R.F.L (4th) 81.

The parties were married for 13 years and had children eleven and nine years old. The husband was a lawyer earning $240,000. The wife had a Grade 12 education, and the most she had ever earned was $27,000 as a secretary.

The wife had not worked outside the home for eight years. She had been the primary caregiver of the children prior to the separation and would continue to be after the divorce.

The trial judge awarded the wife $30,000 per year in spousal support, for five years.

The wife disagreed with the five-year time limitation and appealed to the Court of Appeal.

The Court of Appeal supported the wife, and removed the five-year time limit.

The Court of Appeal said that the trial judge had placed too much emphasis on self sufficiency and not enough on the effect of the wife's past and future child care duties on her jobprospects. In other words, the trial judge had underestimated the degree to which the wife's child care duties decreased her ability to earn income.

The Court of Appeal ordered that the $30,000 annual payments continue for nine years, at which point either party could apply for a review. There was no termination date ordered.

This case is typical of the courts' reluctance to put a firm cut off date on spousal support. The length of time before the first review (nine years) is a bit unusual but not unprecedented.

In my experience, most clients are surprised at the extent of the spousal support obligation. Most people expect their spouse to be self sufficient at the time of the divorce, and that they should be able to "walk away" from a relationship without paying any support. In fact, even people who are in a position to collect spousal support from the other spouse are sometimes reluctant to pursue a claim because that would conflict with their sense of independence and self reliance.

Jim Herbert is a Toronto-based lawyer.

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