Both Ontario and Federal law legislate that spouses have an obligation to support one another during marriage. When a marriage breaks, there may be an obligation for the higher earning spouse to continue to support the lower earning spouse for a time.
The Family Law Act S. 33 (8) recognizes that when two people are married, they merge their financial lives together, equally contributing in different ways to the family unit and bearing economic consequences of the relationship. Therefore, the law says that after they separate, each spouse should have the opportunity to ‘become able to contribute to his or her own support’ and move on with his or her life.
It is often assumed that only married people are entitled to spousal support, but there may still be entitlement if two people have cohabited together for three years or more having lived as a couple. Additionally, there may be entitlement if two people have lived in a conjugal relationship for less than three years but have a child together.
There are a few other factors that affect whether or not there will be entitlement. It is not only that a payor spouse earns more than the claiming spouse, but that the claiming spouse may have incurred an economic disadvantage because of the marriage (compensatory claim), or be unable to support him or herself going forward (non-compensatory claim).
There are several factors that affect the amount and duration of spousal support awarded. These are spelled out in the Divorce Act and the Family Law Act. The length of a marriage, the age and health of the spouses, whether one spouse sacrificed their career to take care of children or supported the other spouse by taking care of the home, are some factors. The conduct of a spouse during the marriage is not a factor in spousal support in most cases. The SSAG (Spousal Support Advisory Guidelines) are a look up table that serve as a persuasive guide for for both negotiating spouses and judges. They give a range of possible amounts from low, middle to high. The also suggest a range of time that the support payments should last. It can be for an indefinite or a definite period of time, or for a time-limited period if, for example, the marriage has been short and there are no children.
In certain cases, spouses may have a lifelong obligation of spousal support to each other. As mediators, we use these suggested ranges and time durations as a basis to guide discussions around what is appropriate in the circumstances.
Even if there is entitlement to spousal support, the quantum is computed only once child support and special and extraordinary expenses have been apportioned from the payor spouse’s income and assets. This reflects the child-first approach of family law in Ontario. Lawyers and mediators use specialised software that takes this into account.
There is no limitation period for spouses claiming spousal support, but it can be difficult to obtain arrears if there is too much of a delay in claiming it.
It can be very tempting not to disclose all of your assets or your true income to avoid paying spousal support. This can not only lead to a termination of your mediation negotations, but also lead you into a courtroom, where the assets that you hope to retain will quickly begin to deplete in lawyer’s fees. Just as your lawyer’s job is to advocate for you, your spouse’s lawyer’s job is to advocate for them, and financial disclosure is an absolute requirement both for your respective lawyers and the court for your divorce to become final. It is therefore in your best interests to come to the table with full financial disclosure in good faith.
Spousal support is most often paid at regular intervals, usually monthly. Sometimes, however, in order to effect a ‘clean break’, it can be paid in a lump sum. The tax implications for each type of payment method will be different.
We help you understand the various moving parts of your financial story so that you can come up with a truly tailored arrangement that just fits your life.
Life is never stagnant, and the law recognizes that financial circumstances of both parties may change with time. According to the Family Law Act, any ‘material change in the dependant’s or respondent’s circumstances’ since the making of the original order would warrant a variation. It is an option for parties engaged in mediation to build a variation clause into their agreement. They agree to exchange financial information once a year and vary (or terminate) the quantum of spousal support if necessary. Some parties do this on their own, while others return to our offices for assistance with their negotiations.
We look forward to collaborating on a tailored solution that meets your needs.
