Top Five Questions About Spousal Support in Canada
1) What is spousal support?
Spousal support – which is sometimes called “maintenance” or (especially in the U.S.) “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:
• the spouses have lived together in a “marriage-like relationship” for at least three years; and
• the claim for spousal support is made within one year of couples’ separation.
2) What is the legal basis for obtaining spousal support?
The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.
Next, spousal support may arise through consensus reached by the spouses – for example, they may agree in a separation that one spouse will pay the other spousal support in a specified amount and for a certain duration.
However, if the separating spouses do not agree, a court may order spousal support, and will set an amount and duration based on various factors that exist between the parties. The jurisdiction for a court to award spousal support comes from either the federal Divorce Act (as part of a divorce order), or from the Ontario Family Law Act.
3) What factors dictate the duration and amount of spousal support?
The determination of how much support a spouse should receive, and for how long, is a complex equation. By law, in making a spousal support order courts are required to consider several factors, including:
• the length of the entire relationship (including time living together before marriage);
• the financial circumstances of each spouse, both during the relationship and after separation;
• the functions performed by each spouse during the relationship;
• the financial repercussions or detrimental financial effect on one or both spouses of caring for each other or for any children of the relationship; and
• each spouse’s ability to support him or herself.
There are no hard-and-fast rules surrounding spousal support entitlement, but there are numerous principles that dictate that the post-separation financial dependence / independence of a spouse must be addressed. However, in some cases one spouse may have suffered a financial loss or disadvantage as result of joint career and lifestyle decisions made during the marriage or relationship (for example the decision to move the family so that a spouse can take a new job, or that the mother will give up her career to stay home and raise the children). In these cases the disadvantaged spouse will be entitled to support to compensate him or her for that setback. Spousal support amounts are also calculated by taking into account the federal Spousal Support Advisory Guidelines, which provide guidance in calculating support amounts by establishing mathematical formulas using income, length of relationship and other variables.
There may also be a limit on the duration of the support that one spouse receives from the other, as means of encouraging the recipient spouse to achieve post-separation financial independence as quickly as possible. Alternatively, the order may contain a built-in review mechanism.
Note that there are certain tax consequences relating to spousal support – both from the payor’s and the recipient’s perspective. In short – and provided it is paid pursuant to either a written separation agreement or a court order – it is considered “taxable income” in the hands of the spouse who receives it, and is deductible from the taxable income of the spouse who pays it. These tax ramifications are taken into account when determining the amount of support.
4) How does the spouse’s behaviour affect spousal support entitlement?
Generally speaking, the entitlement to spousal support is not dependent on the spouse’s pre- or post-separation behaviour, morality, or ethical conduct. In other words, a spouse who is otherwise entitled to spousal support after the dissolution of a marriage will not become disentitled because he or she was violent, or because it is later discovered that he or she had an extra-marital affair during the marriage.
Having said that, a court’s determination of the amount and duration of spousal support will hinge upon each party providing forthright, comprehensive financial disclosure to each other. If in making the determination the court feels that one spouse has withheld financial information (e.g. has failed to disclose a source of significant income), the court may impute income to the spouse and award the other spouse his or her support accordingly.
5) What happens if there is a change in circumstances?
As indicated above, the notion of one spouse receiving spousal support from the other is rooted in several concept and principles, among them the ideas that:
1) the financial disadvantage or dependence that relationship gave rise to must be redressed post-separation; and
2) the ability of the paying spouse to fund the spousal support award must be taken into account.
This being the case, the amount or duration of spousal support may have to be adjusted if there is significant change in the financial circumstances of either party. Generally speaking, this change must be significant, and must not have been foreseen when the separation agreement or the court-ordered spousal support award was made.
