Spousal Support Lawyers
Who is entitled to spousal support?
Unlike child support, grounds for spousal support is not automatic. Ontario family courts use a two step before they will make an order for spousal support. First, entitlement to support must be established. Only after the spouse is found to be entitled do courts then move onto to determining the appropriate amount and duration.
The Supreme Court of Canada (Bracklow v. Bracklow) has established three grounds for entitlement to spousal support: compensation, need and contractual.
Compensation-based spousal support entitlement
A claim for spousal support based on compensation is raised when the spouse seeking support:
- Missed out on career or educational opportunities to raise children or support the other spouse,
- Suffered economic disadvantage as a result of the marriage, or
- Contributed to the economic advantage of the other spouse.
The Supreme Court has held spouses should be entitled to compensation for contributions made during the marriage and for losses resulting from the marriage.
Needs-based spousal support entitlement (non-compensatory)
If a spouse is unable to sufficiently support themselves after the end of the marriage, the claim for support is based on need. This can also be raised when the end of the relationship results in a significant decline in the standard of living of the spouse from that of the marriage. The rationale behind this basis is the notion that a marriage involves an economic interdependence between the spouses that includes mutual reliance and expectation. Further, the financial need of the spouse is better met by the other spouse than society.
Contract-based spousal support entitlement
When there is a pre-existing agreement that sets out the terms of spousal support, the entitlement is based on contract. This is the case when there is a cohabitation or marriage contract.
Reductions and increases and termination of spousal support
There are a number of ways in which a reduction, increase or termination of spousal support can be sought by either the recipient spouse or payor spouse.
Review of Order
The court order for spousal support may include language that expressly permits a party to return to court for a review of the spousal support order.
If the court order says nothing about returning to court to ask for a review, there needs to be what’s called a material change in circumstances to before a court will consider a review. Material changes in circumstance may include:
- Significant increase/decrease in payor or recipient spouse income
- Recipient spouse is remarried and support was only being paid on a need basis
- There was also child support but that is no longer being paid and the recipient wants an increase to spousal support
- The recipient spouse should be self-sufficient by now
- The payor spouse is unable to pay spousal support due to unforeseen circumstances
Do you have to pay spousal support during separation?
Spousal support can and is commonly ordered during separation. Legal divorce is not required for there to be an order for spousal support.
How soon after separation can I make a claim for support?
You can make a claim for spousal support immediately upon separation. There is no limitation period or expiration date on when you can file for spousal support. However, the claim will be stronger, the sooner it is filed.
What’s the difference between spousal support and alimony?
Alimony is an out of date term that has been replaced with spousal support. Alimony is associated with the idea of one spouse continuing to provide for the other after separation or divorce, whereas, spousal support is a more dynamic concept that includes different reasons for spousal support orders.
Do common-law spouses have a right to spousal support?
Common-law spouses have the same rights with respect to spousal support claims as legally married spouses, so long as:
– The parties were living together for at least three years, or
– They have a child together and have been living together in a relationship of some permanence.
How to recover unpaid spousal support?
Spousal support arrears
Court orders for spousal support or agreements registered with the court are enforceable just like any other court order. There are a few options available to recover unpaid spousal support.
Family Responsibility Office (FRO)
The Family Responsibility Office is an agency of the government of Ontario that enforces support orders, collects, distributes and enforces support orders including child and spousal support.
In order for FRO to have authority to enforce an order or agreement, the order or agreement must be filed with FRO. If a payor spouse is in arrears for spousal support, FRO has the authority to do any of the following to recover:
- Garnish the delinquent spouse’s bank account
- Garnish money a delinquent spouse may be entitled to receive from the Government of Canada
- Report the delinquent spouse to the Credit Bureau
- Report the delinquent spouse to their professional or occupational organization
- Suspend the delinquent spouse’s driver license
- Suspend the delinquent spouse’s Canadian passport or other federally granted licenses
- Place a lien on the delinquent spouse’s property
- Issue a writ of seizure and sale for the delinquent spouse’s property
- Seize the delinquent spouse’s lottery winnings
- Commence a Default Hearing against the delinquent spouse, which may result in up to 180 days of jail time.
Contracts waiving spousal support can be set aside
However, even when there is a contract that provides for little or includes a waiver of spousal support, if this leads to an “unconscionable” result, a court may set aside the contract and make a different order for spousal support.
In making a claim for spousal support, it may be made on the basis of one or a combination of the three grounds discussed above. Once it has been established that the spouse is entitled to support, the question becomes one of how much and for how long?
If my ex cheated, do I still have to pay spousal support?
The conduct of the recipient spouse generally does not affect their entitlement to, the amount and duration of spousal support ordered. However, a new relationship where the parties are cohabitating may be a factor the court considers in determining the amount and duration of support.
When will the courts deny spousal support?
Courts are less likely to award spousal support or will award lower amounts when:
- The marriage is very short, especially when there is no children
- Both spouses have a similar income level
- The higher earning spouse has full time care of the children
- There is an enforceable agreement between the parties stating no support is to be paid and it would not be ‘unconscionable’ to uphold the agreement
- Marital debts exceed the assets it can have an effect on a payor’s ability to pay
- If the payor spouse has prior support obligations (child or spousal), the amount ordered by the court may take this into account
How long do I have to pay spousal support?
The duration of spousal support ordered will depend on a number of factors including the basis of the support, the age of the spouses, income of the spouses, whether there are children of the marriage and the duration of the marriage. It is possible for spousal support to be indefinite, particularly in cases of longer marriages.
Can I still get spousal support if I remarry?
Remarriage does not necessarily mean spousal support is reduced or terminated. It will depend on the basis for the support, if it is based on need, compensation or is the result of a contract between the spouses. Remarriage is a more significant factor for need based spousal support. In all cases, the court will look at all factors involved to determine if support should be varied or terminated.
Effect of remarriage on spousal support
Many people think that when an ex remarries or moves in with someone new, that’s the end of the spousal support obligation, afterall, they have a new spouse!
This is incorrect.
If the spousal support was ordered on the basis of need, it is more likely the case that spousal support might be reduced or terminated, however, it will depend on the specific facts of the situation including the new financial situation of the recipient spouse.
If the spousal support was ordered on the basis of compensation, it is less likely that spousal support will be reduced or terminated. The reason is that compensatory spousal support is supposed to compensate a recipient spouse for financial disadvantage or lost financial/employment opportunities, as a result of the marriage. As such, remarriage is not necessarily relevant.
How is spousal support calculated?
Calculation of spousal support is an imprecise activity. The Spousal Support Advisory Guidelines from the Department of Justice provide formulas that produce ranges from low to high with respect to the amount and duration. The court will consider these ranges as well as all other relevant factors.
Is spousal support taxable?
- A recipient of spousal support who receives periodic (monthly) support must pay income tax on the total amount received in a year and they can claim a tax deduction for legal fees spent to get the support. There is no income tax payable on a lump sum spousal support amount, but the recipient cannot claim a tax deduction for the legal fees incurred to get the support.
- A spousal support payor gets a tax deduction for periodic (monthly) or lump sum spousal payments. They cannot claim legal fees incurred to defend a spousal support claim.
How can I get spousal support increased or reduced?
If the spouses are in agreement, they can make a new agreement and if there is a court order they can change spousal support on consent. If the spouses are not in agreement and there is a court order, a motion to change will need to be made to the court. Be cautious as bring such a motion may enable the other spouse to reopen other issues in the order. The court will only vary spousal support if the court order expressly allows for it or if there is a ‘material change in circumstances’ that warrants a change, such as a change in the financial circumstances of the spouses.
How can I avoid paying spousal support?
If there is a support order, it is enforceable by the court and by the Family Responsibility Office, who have a wide range of aggressive options available to pursue unpaid spousal support. If there is no support order, the potential recipient can waive their right to spousal support in an agreement or settlement. A court may not order spousal support if it can be shown there is no entitlement.
If there is still an ongoing family law matter, such as one that involves property or the matrimonial home, and there has been an order or agreement made for spousal support and there are arrears, it may be possible to ask the court for an unequal division of property to account for the arrears.
How to Calculate Spousal Support
Amount and Duration of Spousal Support
Generally speaking, the amount and duration of spousal support depends on factors including:
The duration of the marriage
The age of the spouses
Each spouse’s income
Whether there are children of the marriage
The roles of each spouse in the marriage
Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines (SSAG) were released by the federal Department of Justice in 2008. They are not legislation and are not legally binding, these are guidelines that are intended to assist in calculating the duration and amount of spousal support. Even though they are not binding, courts generally expect them to be referred unless there are shown to be compelling reasons not to. The Ontario Court of Appeal (Wharry v. Wharry, 2016 ONCA 930) has recently confirmed courts are obligated to consider both the amount and duration of spousal support under the guidelines.
The calculations are used to produce a range of spousal support, rather than fixed numbers. There are two basic formulas that can be used for making calculations: (1) without child support, and (2) with child support.
In determining the appropriate place on the range, a number of factors are considered including the nature of the claim (compensatory or non-compensatory) and the particular facts and circumstances of the parties and the relationship.
SSAG without child support formula
The without child support formula is simpler than the with child support formula:
Factors in the formula:
- Payor spouse’s gross income
- Recipient spouse’s gross income
- Number of years the spouses cohabitated
- Recipient spouse’s age
Amount of support: 1.5 to 2 percent of the difference between the spouses gross income for each year of marriage, up to a maximum of 50%.
Duration of support: 0.5 to 1 year for each year of cohabitation (not marriage). If the number of years is greater than 20 or the cohabitation was for more than 5 years and the age of the dependent spouse (the spouse who will receive support) plus the length of cohabitation is equal to or greater than 65, support may be paid indefinitely.
Example of Spousal Support without children
Chris is 50 years old, Sydney is 55 years old and they cohabitated for 10 years. Chris’s gross income is $70,000 and Sydney’s gross income is $120,000. The difference between their income is $50,000
Low end amount
1.5% x 10 (years cohabitating) x $50,000 (difference in income)
= 15% x $50,000
= $7,500/year or $625/month
High end amount
2% x 10 (years cohabitating) x $50,000 (difference in income)
= 20% x $50,000
= $10,000/year or $833/month
Low end duration
0.5 x 10 (years cohabitating) = 5 years
High end duration
1 x 10 years (cohabitating) = 10 years
According to the guidelines, the range of spousal support for Chris would be $625 – $833 per month for 5 – 10 years.
SSAG with child support formula
This is the more complicated formula. Child support is deducted from the payor spouse’s gross income and the recipient spouse’s gross income (to reflect that this parent is bearing child raising costs), taxes are accounted for and government benefits are added to the recipient spouse’s gross income.
Factors in the formula:
- Payor spouse’s net disposable income (gross income, minus taxes and minus their child support obligation, including the tax credits for spousal support)
- Recipient spouse’s net disposable income (gross income, minus taxes and minus their notional child support obligation, plus any government benefits they receive, less the taxes payable for spousal support)
- Number of years the spouses cohabitated
- Recipient spouse’s age
- The number of children child support is payable for
- The number of years until the youngest child starts and leaves full-time school.
Example of spousal support with children:
This calculation cannot be done manually and requires a computer program.
Low range formula for duration
Low range formula for duration
- 0.5 years for each year of the relationship
- the length of time remaining until the youngest child starts full-time school
High range formula for duration
1 x 10 years (cohabitating) = 10 years
- 1 year for each year of the relationship
- the length of time remaining until the youngest child finishes full-time school
Other factors to consider:
There is also an expectation that the recipient spouse will become self-sufficient in a reasonable amount of time, this is sometimes called the “duty to become self-sufficient” and is by courts to structure the amount and length of time spousal support will be paid. In this sense, spousal support is a sort of parachute to help the recipient get back on their feet.
Ability to pay
The court will also consider the payor spouse’s ability to pay spousal support. This consideration involves looking at factors such as the payor’s other support obligations, their employment situation and general financial circumstances.
Can you make a lump sum spousal support payment?
The court has the authority to award periodic (monthly) spousal support payments or to order the amount be paid in one lump sum, or both. In some cases, courts award lump sum payments where there is a concern the payor will default. A lump sum may be preferred where it is desirable for there to be no ongoing communication and to facilitate financial independence between the spouses. Lump sum payments are seen most frequently in marriages of short duration. Either party can include in their claim or response to a claim that the amount be made, in whole or in part, by a lump sum.
Indefinite spousal support
When we talk about indefinite spousal support, it is incorrect to assume this means forever. It may mean forever, but it can also simply mean that the court did not order an end date for the spousal support, in which case, it may be possible to return to court at a later date and ask for an order that the spousal support be reduced or terminated.
Under the SSAG’s, if the length of cohabitation is over 20 years, indefinite support may be ordered. If the length of cohabitation is over 5 years and the length of cohabitation plus the age of the recipient is 65 (eg. 55 year old recipient + 10 year cohabitation), indefinite support may be ordered as well, this is called the Rule of 65.
The idea is that as we age, our employment prospects, and thus our economic prospects, are lower and the guidelines account for this.
However, just because either of these conditions are met, there should not be an assumption that indefinite support will be ordered. The court will take into account all other relevant factors including the age of the recipient and their employment circumstances. For instance, if the recipient is 46 and the length of cohabitation was 20 years, technically indefinite support could be on the table, however, this recipient likely has better employment and economic prospects than a 58 year old recipient.
In either course, a motion to change is required including supporting documentation and affidavits. This will essentially initiate a court process.
However, when responding to a motion to change, the respondent may reopen other issues in addition to spousal support, such as child support and custody and access. So it is important to fully understand the risks and costs vs benefits of proceeding with a motion to change spousal support.
– Spousal support is not automatic, entitlement must be established before the amount and duration and the payor’s ability to pay is a factor
– Common law spouses who cohabitated for more than 3 years or more than a year if they have a child, are entitled to make a claim for spousal support
– Contracts/agreements waiving spousal support may be set aside by the court if they are ‘unconscionable’
– Spousal support can be indefinite
– Spousal support can be ordered during separation
– The Family Responsibility Office can enforce spousal support orders
– There is no time limit on when spousal support is to be sought but the sooner the claim is made, the stronger the case
– There is no precise formula for calculating spousal support, the Spousal Support Advisory Guidelines provide formulas that produce a range and all relevant factors will be considered by the court
– Spousal support amounts are affected by child support