When a couple files for a divorce, one of the partners may be required to financially support the other partner. This kind of support is known as “spousal support”, also referred to as “alimony” or “maintenance”.
When is Spousal Support Awarded?
There are certain requirements that must be met in order for the recipient spouse to be entitled to spousal support. First, the court must determine the recipient spouse is “eligible” for spousal support. Generally speaking, a spouse is eligible for spousal support if they meet the definition of “spouse” under the applicable statute. If the court determines the recipient spouse is eligible for such support, the court must then determine the appropriate amount of spousal support and whether the spousal support ought to be paid in a lump sum payment or in periodic payments.
In Canada, divorces are governed by the Divorce Act.
Under section 15.2(6) of the Divorce Act, there are four purposes of a spousal support order:
it acknowledges any economic advantages or disadvantages to the spouses stemming from the marriage or its breakdown;
it acknowledges financial consequences between the spouses arising from child care obligations of the marriage, over and above any child support obligations of the marriage;
it provides relief of any economic hardship experienced by the spouses stemming from the breakdown of the marriage; and,
where practicable, it encourages the economic self-sufficiency of each spouse within a reasonable period of time.
Either of the spouses are able to request spousal support when obtaining a divorce.
There are many factors that a court will consider when determining whether a spouse is entitled to spousal support and the appropriate amount of such support including, but not limited to, the following:
the financial situation of each spouse (financial need, source of income, etc.);
the length of time the spouses lived together;
the roles of each spouse during the marriage;
the standard of living of the parties when they lived together;
the current financial position of the spouses after the breakdown of the marriage;
the spouses’ current and ongoing responsibilities of care of the children;
any previous agreements or arrangements made regarding spousal support between the spouses;
the age of each spouse at the time of the divorce; and,
the ability of the spouse requesting support to become self-sufficient.
Common Law Spouses
Unlike married spouses, separations between common law spouses are governed by Ontario’s Family Law Act. Accordingly, common law spouses may also be entitled to spousal support.
The following criteria must be satisfied in order for a common law spouse to be entitled to spousal support:
the parties must have cohabited continuously for at least three years; or,
the parties must have been in a relationship of some permanence that resulted in a biological or adopted child.
How is Spousal Support Calculated?
Canadian courts and family lawyers generally use the Spousal Support Advisory Guidelines (“SSAG”) to determine the amount of spousal support the spousal recipient may be entitled to. The calculation of spousal support is one of the most complex areas of family law. Courts take into consideration many factors to determine an amount that is fair to both parties.
The SSAG provides a general formula for determining amount and duration estimates of spousal support. The number of years the parties have been married and the parties’ gross incomes are both contributing factors to SSAG spousal support calculations.
Two Spousal Support Formulas in Ontario
There are two basic formulas used to calculate alimony in Ontario: Without Child Support formula and With Child Support formula. The formula to be used will generally depend on whether the spouses have a child or children in the relationship.
Without Child Support Formula
Where there are no child support obligations, calculating spousal support relies heavily upon the length of the relationship. This means that the amount of support and duration increases with the length of the relationship to a maximum of up to 25 years of marriage.
With Child Support Formula
This formula emphasizes on children’s rights to financial security. Child support obligations are generally calculated first, followed by spousal support. For post-separation families with limited means, spousal support amounts may be significantly diminished. The child support formula used to calculate spousal support is based on the individual net disposable income.
What is the Duration of Spousal Support?
Aside from SSAG calculations, the duration of spousal support depends on the type of spousal support order awarded. If a temporary support order is awarded, then the paying spouse must provide support payment(s) to the recipient spouse temporarily pending the resolution of the support claim. Alternatively, if a final support order is awarded, then the paying spouse may be required to provide the support payment(s) indefinitely or for a specific period of time. If a party is unsatisfied with the spousal support arrangement and there are grounds to challenge such an arrangement, the challenging party may bring an application to change the terms of the spousal support order. Such an application is often known as an application to “vary” the support order.
When to Stop Paying Spousal Support?
If spousal support is set out in a written agreement or in a court order, the payor must continue to pay unless:
The order is changed by the court;
The parties consent to change the agreement; or,
The conditions for stopping payment, as set out in the order or agreement, have been met.
A court may only change a spousal support order when justified by an important change in circumstances of either spouse. For example, if the support payor losses their job and can no longer make the payments.
How can Chand & Co. Assist You?
There is no time limit on when a spouse can claim spousal support. If you are divorcing from your partner or if you have already divorced your partner, and you want to apply for spousal support, one of our family lawyers can assist you with the spousal support process. Similarly, if you are the paying spouse or the recipient spouse, and seek to change the terms of the spousal support order or challenge the terms of the spousal support order, our lawyers have the skills to assist you with such matters.
Whatever your situation, Chand & Co. is here to help. If you would like to consult with our team to discuss your legal options concerning spousal support, please call us at 416-583-2377 or email us at email@example.com.
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