When spouses separate, or divorce, the issue of spousal support may need to be addressed. Parties may choose to address this issue by agreement by incorporating relevant provisions in their separation agreement. If the issue is contentious, the parties may reach an agreement through mediation and arbitration or by judicial intervention of a court, which is often the last resort.

This blog will explore the issue of spousal support waiver in Alberta and will outline how a court may determine whether to uphold such a waiver in light of a recent decision from the Alberta Court of Appeal. 

Spousal Support in Alberta

Entitlement to spousal support is based on the Divorce Act’s guiding objectives, the Alberta Family Law Act, and is quantified with reference to the Spousal Support Advisory Guidelines. In other words, only some separated or divorced spouses are entitled to spousal support. An appropriate amount is highly dependent on the circumstances of the case. If the parties choose to include terms relating to spousal support in their separation agreement, it is important to consider the entire context to determine an appropriate amount.

Section 15.2(6) of the federal Divorce Act and section 60 of the Alberta Family Law Act outline the objectives of a spousal support order, which is intended to:

• recognize economic advantages or disadvantages between the spouses as a result of the marriage or arising due to a breakdown in the relationship; 
• divide financial consequences which occurred due to the care of the children of the marriage over and above any obligation for the support of the children of the marriage; 
• relieve a spouse’s economic hardship which arose due to a breakdown of the marriage; and
• promote economic self-sufficiency of each spouse within a reasonable period of time subsequent to the date of separation. 

Addressing Spousal Support in a Separation Agreement

Upon separation, some parties may decide to address spousal support in a separation agreement. Given the circumstances, they can set terms based on what they think is fair. By addressing spousal support in a separation agreement, the parties can negotiate and identify mutually agreeable terms themselves rather than leaving the determination up to an alternative dispute decision-maker or a judge. This gives the parties a degree of certainty, as they can rely on the terms unless it is challenged in court.

However, when parties choose to waive their right to spousal support, this may be called into question, and a court may be asked to decide whether or not to uphold such a waiver. 

When Will Courts Uphold a Waiver of Spousal Support?

In Zibell v Zibell, 2024 ABCA 145, the parties separated after 24 years of marriage and entered into a Divorce and Property Contract (the “Contract”) dated March 15, 2019. The matter before the Court of Appeal was an appeal regarding the interpretation of certain clauses within the Contract and whether the conditions precedent to the wife’s waiver of spousal support were satisfied. 

The Contract provided that the wife would receive a lump sum spousal support award of $93,000, which was to be satisfied through the husband’s interest in the matrimonial home, along with $163,300 of his locked-in retirement account (LIRA) pension. However, the wife argued that the conditions for her waiver of spousal support were unmet as the husband failed to transfer $90,000 from his registered retirement savings plan (RRSP). 

Chambers Judge Finds Wife’s Application for Spousal Support Appropriate in the Circumstances

The husband argued that the transfer of the matrimonial home and LIRA pension activated the spousal support waiver and that the wife’s remedy for the missing RRSP transfer should be a separate action for a breach of contract. 

The chambers judge interpreted the Contract and found no waiver of spousal support. Overall, the chambers judge supported the wife’s position and concluded that her application for spousal support was appropriate in the circumstances, which resulted in a lump sum spousal support award of $90,871. This amount represented the RRSP value the wife was to have received, in addition to $871 which was garnished from her bank account by the husband’s creditor. 

Court of Appeal Upholds Wife’s Spousal Support Waiver

When the matter came before the Court of Appeal, the Court noted that the issue was “a case where it is alleged that the agreement was breached, the result being that there is no valid waiver as provided under the Contract,” as framed by the chambers judge. The appeal focused on the contractual interpretation of the relevant clauses, and the Court determined that the key terms of the Contract did not condition the waiver of spousal support for the RRSP transfer. Rather, the Court found that the wife’s receipt of the husband’s LIRA pension and matrimonial home was sufficient to satisfy the spousal support agreement. 

Ultimately, the Court allowed the appeal and acknowledged that the conditions had been met when the transfers occurred, satisfying the conditions for the wife’s waiver of spousal support. The Court noted that “the RRSP is instead matrimonial property, further reinforces the conclusion that the waiver of spousal support was triggered when [the wife] received the property that was specifically identified as a substitute for a lump sum spousal support payment.” The Court stated that “the chambers judge’s interpretation of the Contract cannot be sustained, even mindful of the deference owed” and the parties were encouraged to consider a consent judgment to resolve any outstanding issues. 

Getz Collins and Associates Provide Trusted Legal Advice on Family Law Disputes

The experienced family law lawyers at Getz Collins and Associates provide each client with comprehensive advice and assistance on a variety of family law matters, including separation agreements, spousal support claims, and child support matters.

With offices in Calgary and Strathmore, Getz Collins and Associates represents clients in communities across Alberta, including Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar, and surrounding areas. To learn how we can assist you with your family law matter, contact us at (587) 391-5600 or contact us online.