Spousal Support: What Is It?
After a separation or divorce, one partner may pay the other spousal support, which is typically given as a lump payment or on a monthly basis. It's critical to comprehend how Ontario determines spousal support.
The Divorce Act and the Family Law Act (FLA) are the two statutes that allow for the issuance of spousal support orders. Whether or not you are married will typically determine which of those two statutes applies to your situation:
Under Family Law Act and Married Unmarried Divorce Act
The Family Law Act
Section 29 of the FLA's definition of "spouse" limits unmarried couples' eligibility for spousal support to common law couples who: have lived together consistently for a minimum of three years; or are parents to a child as defined by section 4 of the Children's Law Reform Act and are in a relationship of some stability.
Couples of the Same Sex
In Ontario, same-sex couples' applications for spousal support—whether made under the FLA or the Divorce Act—are handled exactly the same as those of opposite-sex marriages.
Do I Qualify for Spousal Support?
Determining entitlement, or whether a potential recipient has adequate justification for a claim to spousal support, is the first stage in any spousal support study. This is predicated on taking into account particular circumstances. Justice Chappel stated in a recent ruling (Thompson v. Thompson) that:
"Entitlement can be established on multiple grounds because it does not restrict or prioritize one over the other. Determining all grounds for entitlement is crucial for the court and your attorneys since it could significantly affect the amount and length of spousal support.
If a support claim can demonstrate that the party is entitled to support on both a "needs" and "compensatory" basis (both described below), the amount and duration of any support will probably be higher than it would have been if there were only one basis for entitlement. This is because a support claim only needs to prove one of two (apart from contractual) grounds.
What Affects a Spouse's Eligibility for Spousal Support?
For Couples Who Are Married
In Canada, marriage is viewed similarly to a business partnership when it comes to financial problems. According to the Supreme Court of Canada's interpretation in Bracklow v. Bracklow, which was addressed under section 15.2 of the Divorce Act, a spouse in Ontario would be entitled to alimony for three reasons:
Paying the spouse who sacrificed their profession and/or financial prospects to care for the home and family while the other spouse continued or advanced their own career or earning potential is the major goal of the compensatory basis.
Non-compensatory (also known as "needs-based") basis: acknowledges that the higher-earning spouse can assist and that the partnership collapse placed one spouse at a financial disadvantage that cannot be remedied otherwise.
Contractual basis: spousal support in the event of separation is covered by an existing cohabitation agreement, marriage contract (also known as a "prenup" or "postnup"), or other legal agreement or contract of the spouses' domestic connection.
Assessing Eligibility under the Divorce Act
A suitable spousal support order should take into account the circumstances of both spouses (s. 15.2(6) of the Divorce Act), and there are numerous considerations to take into account while establishing these basis for entitlement to alimony in Ontario (s. 15.2(4) of the Divorce Act). These criteria include:
financial circumstances, needs, means, and requirements; marital roles during the relationship; the impact these roles had on each spouse's financial situation in the event of the marriage's dissolution; the financial consequences of continuing child care and responsibility; the children's age and best interests; the duration of the marriage and the length of time the spouses lived together; any orders, agreements, or arrangements pertaining to either spouse's support; and encourage each spouse's financial independence.
Many people are surprised to learn that "the court shall not take into consideration any misconduct of a spouse in relation to the marriage," including infidelity, when deciding on the proper spousal support arrangement (subsection 15.2(5)).
A court order or a separation agreement
In Ontario, spousal maintenance may be stipulated in a court order or in a separation agreement. According to Article 15.2(1), a court may, upon application from one or both spouses, impose a spousal maintenance order based on what the court deems appropriate.
Orders for Interim Support
An interim support order, which is a temporary support order intended to regulate the situation until a permanent order can be made at trial or the parties reach a separation agreement without a trial, may be issued by the court under subsection 15.2(2).
In contrast to when the court is making a decision on a final and permanent basis (at trial), the courts have historically employed a criterion of "rough justice" when considering support arrangements on an interim (temporary) basis. In these cases, the other spouse's financial capacity and the financial need of the spouse seeking help are closely examined.
In order to rectify an overpayment or underpayment of support that resulted from an interim order, the courts may also issue a second order for retroactive adjustment of the order.
Regarding Common Law Partnerships
Although there are some distinctions, the FLA's spousal support rules are comparable to those in the Divorce Act. But according to section 30 of the FLA, the rationale for spousal support is still the same:
"To the extent that they are able, each spouse has a duty to financially support both themselves and the other spouse in accordance with need."
How Does Spousal Support Get Determined?
In Ontario, spousal support is determined via a thorough process that takes into account several, case-specific financial variables, much like entitlement.
The next step is to decide how much (the "quantum") and how long (the "duration") spousal support should be paid if and only if the court finds that the claimant is entitled to it on at least one basis.
Guidelines for Spousal Support Advisory
In essence, spousal support for separation agreements and court orders will be determined by a court and/or your attorneys using the Spousal Support Advisory Guidelines (SSAGs). Remembering that the SSAGs are illegal is crucial. Instead, the courts and your attorneys use them as a helpful tool.
What is the duration of spousal support payments?
Monthly (or "periodic") spousal support may be paid for a certain amount of time or forever, until a change in circumstances necessitates a modification in the amount or termination of the support.
The length of time that a support recipient is eligible to receive support or the length of time that a support payor is required to pay is not standardized. The time will depend on the partners' circumstances, needs, means, and financial situation. As a result, the length of a possible spousal support agreement or claim order is determined by the particular facts of each case. A deadline for review or modification of support arrangements is either mandated by a court or agreed with by the parties.
Is it Possible for Spousal Support to End?
In general, spousal support must be paid continuously after an order or written agreement requiring its legal payment takes effect, unlessThe court modifies the order; the parties agree to modify its terms; or the agreement or court order contains legal requirements for halting payment that have been satisfied.
If there has been a significant change in either the payor's or the recipient's circumstances, a court may modify a spousal support order with your consent or with that of your ex-spouse. To find out your choices if your circumstances have changed and your spousal support payments are impacted, please speak with your attorney.
Usually, if your order or separation agreement specifies that spousal support will stop on a given date or once a number of conditions are fulfilled, this will be made clear.