What is spousal support
In the eyes of the law, spousal relationships are essentially financial partnerships. Accordingly, when a relationship ends through divorce or separation one party may be required to assist the other through financial support – legally referred to as spousal support. Judges on a case-by-case basis determine whether spousal support is appropriate, the amount and length of time that it should be paid.
Who can claim spousal support
In order to claim spousal support you must fall within the legal definition of a “spouse.” There are two statutes that define “spouse”: the Divorce Act and the Family Law Act (FLA). When claiming for support you must do so under one of these statutes.
The Divorce Act is a federal statute, which can be applied any in province. Under this statute, either of two persons who are married to each other can claim for spousal support (s. 2). If a divorce has already been granted, support claims can only be brought under the Divorce Act and not the FLA.
The FLA is a provincial statue, which governs family issues within Ontario. Under s. 1 of the FLA “spouse” includes:
- Either of two persons who are married to each other or have entered into a marriage that is voidable or void in good faith;
- Either of two persons who are not married and have cohabited continuously for a period of at least three years in a conjugal relationship; and
- Either of two persons who are not married but who are in a relationship of some permanence if they are the natural or adoptive parents of a child.
If spousal support has been decided under the FLA and the parties then decide to get a divorce, the spousal support order remains in force until the Divorce Act puts a new order in place. In the event the parties have an order from the FLA and choose not to pursue a claim for spousal support under the Divorce Act, there will be no changes made to the support order under the FLA.
Factors considered in determining spousal support
Both the Divorce Act (s.15.2) and FLA (s. 33(8) have a set of principles to establish entitlement. The courts have held that the main concern is to redress the economic consequences of spousal relationships. The factors taken into consideration to determine this are: length of the relationship, the parties’ financial circumstances, and the roles the parties fulfilled while together.
The Supreme Court of Canada, in Bracklow v Bracklow identified three models in determining the basis for spousal support:
- Contractual: where the court will consider agreements between the parties to create or limit mutual support obligations
- Compensatory: where the court will compensate a spouse who suffered economic disadvantage due to the marriage or where a spouse has contributed to the economic advantage of the other spouse
- Needs based: where the court will consider the needs, means, and other circumstances of the spouse in order to determine if they are able to support themselves without the assistance of the other party.
The Role of Conduct in determining spousal support payments
Misconduct is not a consideration in spousal support orders under the Divorce Act (s. 15.2(5)). However, under subsection 33(10) of the FLA the court may consider misconduct in rare cases. For instance, whether a spouse has been unfaithful will not be taken into account under the Divorce Act, but it can be a consideration in making a spousal support order under the FLA. The misconduct must have obviously and grossly attributed to the breakdown of the marriage.
Moreover, entering a new relationship does not disentitle you to spousal support. However, it is a factor in assessing need and will mitigate the amount of spousal support based on the contribution of the new partner.
Factors considered in assessing the amount and duration of spousal support
Neither statute specifies directions as to the quantum of spousal support. The process requires that both parties exchange financial information and prepare budgets showing spending patterns during the relationship and current need. The standard of living during the marriage is the main factor in assessing the appropriate level of support. However, the payor’s income will also be considered and may limit the ability to replicate the pre-separation standard of living. The court will look at the payor’s income throughout the relationship, their present employment, as well as potential earnings. In other words, if the payor ceases to be employed shortly before or after separation, their obligation to pay spousal support does not cease.
Other examples of factors that may be considered by the court are: mental and physical health, amount of child support, need for education/training to become self sufficient, duration of marriage, domestic contracts and loss of career opportunities due to responsibilities to the household during the marriage.
Unlike child support, there are no mandatory guidelines in assessing spousal support. Since 2008, Ontario courts have used the advisory Spousal Support Guidelines as basis for determining how much spousal support should be paid and for how long. Although they are not mandatory, lawyers and judges regularly use them. Essentially, information in the particular case is factored into a very complex formula to calculate a low, middle and high range of support amounts to be considered. It is important to note, the courts maintain discretion in assessing spousal support on case-by-case basis and as such there is no guarantees as to how much will be awarded.
Where there is a material change of circumstances after an order has been made, either spouse may apply for re-assessment of amount and duration. For instance, in the event the judge states that child support has been used to limit spousal support, it is possible to apply to the court to have spousal support increased once child support is no longer necessary.
Final Spousal Support Orders
The court will give a final support order that may be indefinite, time limited or subject to review. An indefinite order means spousal support will only be varied if there is a material change in circumstances. For instance, if the recipient spouse becomes financially independent the payor may be able to apply to reduce or eliminate spousal support. Time limited orders are often provided in short-term marriages where there is evidence that the recipient spouse will find employment in a specific time frame or where they are not making reasonable efforts to find employment. Finally, where there is uncertainty at the initial decision, the court may order that a review of the spousal support order take place after a fixed period. Review orders are available under the Divorce Act, however, it is discretionary under the FLA.
Temporary Spousal Support orders (interim spousal support)
Where a spouse requires financial support immediately it may be possible to attain temporary relief pending a final order. This can be achieved by either having both parties agree to an arrangement or by bringing a motion and requesting an order from the court. For interim spousal support. The purpose for interim spousal support is to permit the dependent spouse to live in reasonable comfort in accordance with the parties’ means, pending a final decision on the issue.
Lump-sum spousal support
A lump-sum payment is a one time payment where no further spousal support may be provided thereafter. A party can request a lump-sum payment subject to the availability of sufficient resources. This would be most appropriate where the parties want a clean break; where the payor spouse is at high risk of default, or; after a short-term marriage where the award is minimal. For tax purposes, it should be noted that a lump-sum payment is not taxable in the recipient’s hands or tax deductible to the payor.
Property Claims and Equalization of Family Property
Upon separation or divorce, couples have to deal with the often complex issue of dividing their property. It’s worth noting that unlike support, property division is an area in which common-law partners without cohabitation agreements often run into difficulties.
Common-law partners do not enjoy the same privileges that outright married couples do. It might be easier to say that common-law partners, although often honoured legally, do not have the same extent of privileges as married couples in the eyes of the law. For example, there is a significant difference is in the treatment of the home in which the couple cohabited. For married couples matrimonial homes are treated specially in relation to other family property.
Also, common-law spouses are not automatically entitled to equalization of net family property, there are other common-law rules however that can be used to ensure that common law spouses get a reasonable share of the family property upon separating from a partner who has title to the property
Married couples are entitled to more rights and privileges in regards to property claims and this includes the matrimonial home. Both parties have equal rights to reside in the home. Also, exclusive possession of the home may be granted to either partner regardless of the name on the ownership documents, or if it is jointly owned, regardless of the perception that one person is entitled to the property if they earn more or brought more assets into the marriage or accumulated more at the end of the relationship. The law sees the marriage as an equal partnership between the two partners.
Section 24(3)(4) of the Ontario Family Act which determines whether the court will make an order for exclusive possession states that the court shall consider,
- (a) the best interests of the children affected;
- (b) any existing orders under Part I (Family Property) and any existing support orders;
- (c) the financial position of both spouses;
- (d) any written agreement between the parties;
- (e) the availability of other suitable and affordable accommodation; and
- (f) any violence committed by a spouse against the other spouse or the children.
At AP Lawyers we always start by looking at the issue of ENTITLEMENT. By asking the right questions and understanding the nature of the relationship, we can determine the threshold question – is there any entitlement to spousal support in this particular case?
Income disparity alone does not create entitlement to spousal support.
An often-overlooked factor, is the basis of entitlement to spousal support? This affects how much spousal support will be payable.
J. v. A.
In J v. A the parties were married for 7 years. They had a son – who was 6 years old. J was the primary caregiver to their son and worked for himself on a part time basis so he could care for the child. Upon separation, the parties agreed to a shared parenting plan but in reality, the child was in J’s care for most of the time.
We were able to negotiate spousal support at the high range for J as it is important for the child to enjoy a similar standard of living in both homes. We achieved this despite A’s position that she should pay no support because of the shared parenting arrangement.
P. v. A.
P retained Angela Princewill after unsuccessfully trying for years to get a variation of child and spousal support to be in line with A’s income increases as initially agreed to by the parties.
We got A to pay a substantial amount for retroactive child and spousal support.
A wanted income imputed to P who intended to return to school to retrain for a new career. Angela Princewill successfully set ongoing spousal support for another 5 years with no income imputed to P. This would allow P complete two years of school, find a job and get more stable in her job before spousal support terminates.
J. v. M.
Shortly after separation, J moved aggressively for a sale of the matrimonial home. M was concerned about her survival as she was unemployed and could not afford to qualify for a mortgage or even rent a place with no income.
We vehemently resisted the home being listed for sale, until the issue of spousal support was resolve by a court Order.
K. v. R.
K and R had a very amicable separation. R helped K find a new home, secure a mortgage and even helped with the actual move.
R then drafted a Separation Agreement which he convinced K was heavily in her favour and asked her to sign it, without independent legal advice.
Thankfully, K sought legal advice from Angela Princewill.
K was offered $0 in child support, $3,000 in spousal support and half the proceeds of sale of the matrimonial home only. Angela Princewill got K $2,300 for child support, $3,200 in spousal support, half the proceeds of sale of the matrimonial home, plus an additional equalization payment of $360,000.00.