If you’re separating from your spouse, you may be obliged to pay spousal support. The amount of spousal support you have to pay and the duration/ length of time you have to pay support for depends on a variety of factors including:
how long you were married/cohabited
the age of the recipient on the date of separation
if you have children with your spouse
the child custody arrangement
the age of the children
if you choose to restructure support payments to reduce the number of support payments
your respective financial circumstances
the basis of entitlement/strength of any compensatory claim
recipient’s need and ability of the payor to pay
any special needs of the children
For long term marriages of 20 years or more, the duration of spousal support is usually for an “indefinite (unspecified) duration, subject to variation and possibly review”. Many payors get concerned when they see this as they interpret it as meaning that would have to pay spousal support forever. Even recipients are surprised when after the passage of time, they discover that their spousal support could be reduced or terminated as they imagined they would receive spousal support in the same amount until they died.
Spousal support for an indefinite duration and spousal support for the recipient’s lifetime are very different things.
The spousal support advisory guidelines would recommend indefinite support when the relationship is 20 years or longer or when the rule of 65 applies (see below for the meaning of the Rule of 65). Indefinite support simply means that at the time the support agreement or order is being made, an end date would not be set. Indefinite support amounts can also be changed. Variation and review of the amount of spousal support being paid is possible if there is a change in circumstances.
In short, despite spousal support being set for an indefinite/ unspecified duration, in the future an end date can be fixed, support can be terminated, and the amount of spousal support can change. What are some factors that could lead to this ?
the payor’s retirement
remarriage of the recipient or the recipient being in a marriage-like relationship
changes in income
recipient being deemed self-sufficient, even if based on income being imputed to the recipient.
Support recipients are required to make reasonable attempts to become self-sufficient even if they have a spousal support agreement or order for an indefinite duration.
The Rule of 65
It applies to marriages of 5 years or longer where the length of the parties’ relationship plus the recipient’s age at the date of separation, equals or exceeds 65. In this case, an indefinite duration of spousal support may be appropriate, even though the parties’ relationship is less than 20 years.
Many times, litigants involved with their family law court case, do not want their support payments to be enforced by the Family Responsibility Office – but they have no choice.
In Ontario courts, when a person is ordered to pay child or spousal support payments, the support order is automatically filed with the Family Responsibility Office (referred to as FRO). Even during those times when the parties and their lawyers agree that payments shall be made directly between each other, the court will continue to have the order enforced by FRO, as that is the default.
There are ways around this and terminology and/or having a mutual agreement is important. In your Court Order or Consent, the parties can agree to withdraw from FRO enforcement and hae the payments made directly to the recipient via e-transfer or even post-dated cheques for example. It takes the mutual consent of the parties to do so and it is as easy as signing a form and sending it into FRO to let them know you want to withdraw from their enforcement. However, if one party wants FRO to be involved, there really will not be a choice to the other party.
Is having FRO involved a bad thing? Not at all. It really depends on the parties. Not all litigants have a poor relationshipwith one another, and they can find a way to manage support payments between themselves. In those situations where the payor is unreliable to make a payment or you need the payment garnished from their wages, FRO can become your tool. There are pros and cons to using FRO for enforcing your support payments which we can go over with you to make sure it is right for you. Book a consultation with one of our experienced family law lawyers in Pickering today!
This is what happened in the case of Bormans v. Bormans Estate, 2016 ONSC 428. The parties in this case separated after a 38 year traditional marriage. There was a court order requiring the husband to pay spousal support. The husband was also to maintain her as the beneficiary of his life insurance policy however, about 4 years later, he stopped making the payments. The wife had very few assets and low income consisting of her CPP disability benefits and the monthly child support.
On his death, his estate was left to his 2 adult children. The court awarded the wife spousal support from the husband’s estate because while she qualified as a dependent under the Succession Law Reform Act, the adult children did not. The husband had a legal obligation to support the applicant.
Did you know that voluntary retirement before the age of 65 may not qualify as a material change?
A material change must be found before a support order will be varied. Also, while retirement may qualify as a material change in some cases, the courts will compare the current income of the person paying support to the income amount that was used to establish the original support order. If there is no difference, a court may find that there has been no material change.
 General guidance for locating where on the range of spousal support should be
 Case law for wife not working full time where she has the ability to
Guidelines for locating range on spousal support
Chapter 9 of the SSAG provides considerable guidance on location within the range, setting out a non-exclusive list of factors to assist in determining the location within the range for both amount and duration:
the strength of any compensatory claim
age, number, needs, and standard of living of children (if any)
In considering the duration of a spousal support award, the court should order a duration closer to the upper end of the range so as to allow a recipient spouse to transition toward a reduced post-separation standard of living, where that spouse’s circumstances are more difficult compared to other dependent spouses who are either better educated or who secure permanent employment.
Strength of any compensatory claim
The strength of the compensatory claim is often mentioned as a factor, whether strong or weak: Brown v. Brown, 2013 NBQB 369 (non-compensatory claim only, low end of range); Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 (strong compensatory claim, sole caregiver);Ross v. Ross, 2010 BCSC 52 (wife maintained qualifications during marriage, able to find full-time work, weaker compensatory claim); and Barry v. Barry, 2009 NLUFC 13 (weaker compensatory claim, stronger non-compensatory claim, below mid-range).
The depth of need can be a strong non-compensatory factor pushing amount higher in the range: Bastarache v. Bastarache, 2012 NBQB 75 (disparity in living standards, need of the wife, between mid and high range). Lower housing costs for the recipient can reduce “need” and pull a court lower in the range, where the recipient is living in a mortgage-free home or pays reduced rent: Guignard v. Guignard, 2011 ONSC 7078 (wife living in rent-geared-to-income housing).
The recipient may also require training or education to improve their earning capacity, a factor which will push the amount higher in the range for a period of time, e.g. Jones v. Hugo, 2012 ONCJ 211.
The payor’s ability to pay can be affected by debt payments: Guignard v. Guignard, above; S.D. v. J.D., 2012 NBQB 237. The payor’s cash flow may be seriously affected by mandatory pension contributions, which should be taken into account in most instances by location in the range: Hari v. Hari, 2013 ONSC 5562; and Macey v. Macey, 2013 ONSC 462.
Age, number, needs, and standard of living of children
No details provided.
Work incentives for the payor
Work incentivesfor the payor are frequently mentioned in the cases: Reid v. Carnduff, 2014 ONSC 605 (mid-range, transportation costs for commute to work); Chapman v. Chapman,  O.J. No. (S.C.J.) (husband’s income dependent on how hard he works, low end of range for work incentives); Savoie v. Savoie, 2009 NBQB 134 (lower than mid-range); and Lalonde v. Lalonde,  O.J. No. 4507, 2008 CarswellOnt 6710 (S.C.J.) (significant overtime included in payor’s income, low end).
Property division and debts
Property division can influence location, mostly at the extremes. A large property settlement gives the spouse security and capital to fall back upon, likely leading to an amount lower in the range: Cochrane v. Cochrane, 2013 BCSC 2114 (strong compensatory claim, but large property, low end). Or, conversely, if there is little property to be divided, support can be higher in the range.
Some specific factors have emerged, that are not explicitly listed amongst those in Chapter 9 of the SSAG, but that can be important in determining the location in the range:
High access costs: H.F. v. M.H., 2014 ONCJ 450 (husband returned to Bermuda); Jardine v. Jardine, 2013 NSSC 30 (high transportation costs for access, split custody); S.D. v. J.D., 2012 NBQB 237 (custodial payor, husband pays all costs of supervised access by wife); Gibson v. Gibson,  O.J. No. 4172 (high access costs after wife’s move from Thunder Bay to Elliot Lake, husband making payments on line of credit, lower end of range); Graham v. Wilson,  O.J. No. 1432, 2009 CarswellOnt 1866 (S.C.J.)(travel for extensive weekend access, low end); Novlesky v. Novlesky, 2009 BCSC 1328 (wife moves back to Brazil, high travel costs, low end); Spikula v. Spikula,  O.J. No. 3931 (S.C.J.)(costs of shared custody, low end).
High medical costs: S.J.M. v. J.L.M., 2010 BCSC 154 (wife’s extra medical, drug and dental costs after divorce, upper end of range).
No details provided.
Case law for wife not working full time where she has the ability to
Ratio: where it is difficult to impute income to a recipient, but a court believes she or he could earn more, the judge may go lower in the range
The Applicant wife and the Respondent husband started living together in 1988, married in 1989 and separated in 2005. The Applicant worked full-time as a dental hygienist for two years of the marriage. Subsequently, the Applicant maintained a part-time position as a dental hygienist at the same office, working just 3 days a week. The Respondent made $114, 581.00 with $9, 560.96 as overtime.
The Applicant said she could not work full-time because she had neck and back problems.
The Respondent suffered from bladder and prostate cancer.
The court stated that having reviewed the Applicant’s ability through own admission, the Court imputed income of $38, 000.00 to her for spousal support calculations.
How it applies to S. v. S.
Ms. S. is claiming she cannot work, however, the Court can determine her ability to work without an expert report, and impute a potential income for the purposes of spousal support calculations.
 Spousal Support Advisory Guidelines, www.justice.gc.ca, §3.4.1.
When seeking an Order for spousal support (alimony as it is sometimes referred to), it is important to know in what court you will be asking for the relief.
For example, if you have already gotten a divorce outside of Canada, you cannot bring a claim for spousal support in a Superior Court as the Superior Court does not have the jurisdiction to order spousal support when the parties have already received a divorce outside Canada.
Also, the Ontario Court of Justice does not have the jurisdiction to hear a proceeding where a party is asking for spousal support under the Divorce Act, if the parties have obtained a divorce outside of Canada. The case of Okmyansky v. Okmyansky, 2007 ONCA 427 is the binding authority on this subject.
While a person may seek spousal support under the Family Law Act, it also cannot be done if the parties obtain a divorce outside Canada. Section 30 of the Family Law Act (FLA) provides that:
“Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).”
This section refers only to spouses and not to former spouses. A Spouse under Part III of the FLA is defined as follows:
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30; 2016, c. 23, s. 47 (1).”
Therefore, former spouses are not entitled to claim support under the FLA.
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As of April 28, 2017, the condition that forced couples to live together for 2 years to maintain their permanent residency was removed.
What was the condition P.R. card holders had?
The old condition was introduced to citizens wishing to sponsor their partners in 2012. This condition stated you had to live with one another at least two years if, at the time you applied your relationship was less than two years and if you had no children together. This meant that if the couple realized before 2 years of living in Canada together, that they were not meant for each other the sponsored spouse may be forced to give up their residency or would be subject to a removal order. Now, upon arrival you will hold full permanent residency without conditions.
Why was the condition put in place?
This condition was put into place in efforts to eliminate marriage fraud and persons seeking to immigrate to Canada through marriage. However, by putting so much focus on these issues the government acknowledged that not only did it lack trust in Canadians- but issues may arise by forcing couples to cohabit for 2 years. A sponsored spouse may feel obligated to stay in a relationship with their sponsor to protect their residency even if they are experiencing feelings of unhappiness and at times abuse.
Couples that hold the same citizenship go through rough times in their relationship where it causes them to separate– so why shouldn’t two people that happen to have different citizenship be able to? With this condition being lifted it will allow the relationship between you and your significant other to grow naturally. Sometimes the pressure of making a relationship work because of all the legality behind it diminishes the reason two people decide to be with one another.
In mid-December Immigration, Refugees and Citizenship Canada (IRCC) released a suite of changes to its spousal sponsorship application process. This is aimed at streamlining and simplifying these applications, with IRCC expecting processing times for spousal sponsorship to fall from up to 26 months currently to 12 months. This new 12-month processing standard will apply to 80% of new and existing applications. This amounts to some 64,000 applicants who are expected to benefit from this significantly improved processing time in 2017.
A key feature of these changes is the introduction by IRCC of a new application kit designed to facilitate faster and easier spousal applications, particularly by no longer requiring certain information at the time of visa application submission. Instead, requirements such as medical examinations and police checks are to be directly requested by IRCC later in the process. This new application kit also applies to sponsorship applications lodged from anywhere in the world, replacing the two previous kits for applications lodged respectively inside and outside of Canada.
In line with this simplification process, a brand new IRCC guide for spousal sponsorships has also been released which consolidates 180 pages from previous multiple guides into one 75-page guide for the entire spousal sponsorship process. Likewise, multiple IRCC spousal application checklists detailing the necessary forms and documents have been replaced with a new single checklist. Applicants are required to closely follow this new checklist, with applications being returned by IRCC if all required forms and documents on this are not provided at the time of application.
From February 1st 2017 all spousal sponsorship applications submitted to IRCC must use the newly released application kit. A main feature of this new mandatory kit is that applicants will be asked to link their submitted paper spousal sponsorship applications to an online account. This will enable applicants to receive electronic correspondence from IRCC and provide further information and requested documentation online. While the spousal sponsorship application process is being simplified, obtaining professional legal advice about your application at the outset of the process ensures the very best prospect of application success. Getting a spousal sponsorship application right the first time is particularly important as this visa program is traditionally over subscribed, with more applications than spousal sponsorship places available each year.
Further information on these changes to spousal sponsorship and the new application kit can be found on the Government of Canada’s website at the following links:
If you are receiving spousal support payment or alimony (as it is called in the USA) you may wonder what happens if you remarry.
Spousal Support Determined
Spousal support is the amount you receive from your former partner when you separate, to contribute to your living expenses. For spousal support purposes, a spouse is determined in the Family Law Act as two persons who;
are married to each other; or
have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
It also includes two persons who are not married to each other and have cohabited;
continuously for a period of not less than three years, or
in a relationship of some permanence, if they are the natural or adoptive parents of a child.
Therefore you may be entitled to spousal support even though you are not married or have only lived together for a short time.
The payment or receipt of spousal support is not based on fault. The starting point is always to determine whether or not you are entitled to spousal support based on:
Spousal support is covered under the Divorce Act (married persons only) and the Ontario Family Law Act. The purpose of spousal support under Subsection 33(8) of the Family Law Act is to:
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
So what happens if you are a spousal support recipient and you remarry?
This is a factor that is determined on a case by case basis and the starting point is to, look at the basis of your entitlement to spousal support in the first place.
If your spousal support is based solely on a need that no longer exists as a result of your remarriage, a court may be persuaded to vary or terminate the spousal support payments. If need still exists, then the fact of your remarriage alone may not be sufficient to justify a variation or termination of the spousal support payments.
Another scenario may be where your former spouse is claiming undue hardship. If your new standard of living exceeds his due to your remarrying then your remarriage may be a relevant factor in a proceeding to vary or terminate spousal support.
If your entitlement to spousal support is based on compensation, then your remarrying may not relive the other party from their spousal support obligation.
Each case is unique and whether support payment will continue or terminate on a marriage to a new partner must be determined based the unique factual scenario.
Are you receiving spousal support and thinking of getting married again or are you paying spousal support and the receiver is remarried or planning to? Then contact A.Princewill Law Firm to book a consultation to discuss your situation.