Area of Law: Family Law
Answer # 118
Spousal supportRegion: Ontario Answer # 118
Spousal support is money paid by one spouse to the other following a separation or divorce. Its general purpose is to compensate one spouse for any financial losses suffered as a result of the marriage and to assist that spouse until they become financially independent. It is not intended to punish or blame one spouse for the breakdown of the relationship. Spousal support can either be agreed to between the spouses or set by the courts.
Who is entitled to spousal support?
Legally married couples
Spouses who were both legally married and divorced are entitled to spousal support according to the laws set out in the federal Divorce Act. Provincial and territorial laws decide the rules for legally married couples who separate, but who are not divorcing, and for unmarried couples who were in a common-law relationship.
Spouses, who are not married, may still qualify for spousal support if they lived together as a couple:
- for at least 3 years, or
- for any length of time if they were in a relationship of some permanence and had a child together.
What determines if spousal support should be awarded?
Spousal support is not available for everyone, and will depend on several different factors. However, it is often awarded where there is a significant difference in the incomes of the spouses. Specific factors that are considered when deciding if a spouse should get support include:
- the financial means and needs of both spouses;
- the length of the marriage;
- the roles of each spouse during their marriage;
- the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
- the care of the children;
- the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and
- any orders, agreements or arrangements already made about spousal support.
How is the amount of spousal support determined?
The amount of spousal support generally depends on the need of the spouse seeking support, the ability of the other spouse to pay and what kind of lifestyle and standard of living the spouses enjoyed during the marriage. Though spousal support can be a lump-sum payment, most of the time it is an ongoing weekly or monthly payment.
Judges sometimes use the Spousal Support Advisory Guidelines to help decide how much spousal support should be paid and for how long. These Guidelines are informal, and are not legislated. The Guidelines are not used to determine if a spouse is entitled to support, but only as a reference tool when deciding the amount of spousal support.
The Guidelines are based on income sharing formulas, meaning that spousal support is determined as a percentage of the difference between the spouses’ incomes. The percentage may vary according to a number of factors, such as the length of the marriage, the age of the recipient spouse, and whether there are any children of the marriage. The Guidelines will give a range of support amounts to consider once all the information has been gathered and a calculation has been done.
The extent of the obligation to pay spousal support will depend on many different factors. Where the marriage had been of short duration it is more likely that any support ordered will be of short duration. Where both spouses worked throughout the marriage any support ordered may be for a limited term. On the other hand, where the marriage was a traditional marriage in the sense that the wife remained in the home, raising the children without significant employment outside the home, the support obligation may be without time limitation.
Changing the amount of spousal support
After a court makes a spousal support order, either spouse can apply to have it increased or decreased if there has been a material change in circumstances. For example, you may be able to reduce your payments if you recently lost your job, or if your ex-spouse recently remarried or was able to get a job. Much will depend on the circumstances of each case and whether the material change was foreseeable. This is an area where legal advice should be sought before making an application.
Payment of both child and spousal support
If either spouse is paying child support, a judge must determine how the payment of spousal support would affect child support payments. The Divorce Act states that a judge must give priority to child support when a person applies for both child and spousal support.
Tax treatment of spousal support payments
Generally, support payments are deductible by the payer and taxable to the spouse receiving the payments, if:
- the court order or written agreement for support payments clearly state the amount to be paid for the spouse, or common-law partner; and
- all payments for child support are fully paid for the current and previous years.
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