Spousal Support

The information below is general in nature and not intended to be a substitute for legal advice. It is not a simple matter to determine whether an individual is or will be liable for spousal support. If you are concerned that you may be liable for support or wonder whether you are able to claim spousal support following a separation, please contact our offices.

Spousal support provisions apply to both opposite-sex and same-sex spouses subsequent to the breakdown of either a marriage or a common-law relationship.

For married spouses, a support order is available under the Family Law Act or the Divorce Act.  If common-law spouses fall within the definition of Adult Interdependent Partners as defined in the Adult Interdependent Relationships Act, then they  can apply for support under the Family Law Act. Once an Adult Interdependent Relationship has been established, then the courts use much the same principles for determining spousal support as they do if the parties are married.

Entitlement to Support
There is no presumption of mutual support upon the breakdown of a common-law relationship or marriage.  According to the Supreme Court of Canada in Bracklow v. Bracklow [1999] 1 S.C.R. 420, there are three bases for entitlement to spousal support:

To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
To fulfill a contractual agreement, express or implied, that the parties were responsible for each other's support; or
On a non-compensatory basis, to assist a spouse in need.
 

A spouse may be entitled to spousal support on any or all of these bases.
Generally, the longer the marriage or common-law relationship the greater the disparity in the economic circumstances of the spouses, the more likely it is that spousal support will be awarded.  Support orders are more common following relationships in which the parties assumed "traditional" roles.  However, even where the parties have maintained financial independence, needs-based support may be ordered to assist a disabled spouse.

Amount and Duration of Support
Spousal support is awarded on an interim, temporary or permanent basis. Support may be ordered in the form of a lump sum payment, although most often it is a monthly amount.

There are no guidelines setting out the amount or duration of support.  The Courts determine each case on its own particular facts and with reference to the following objectives of spousal support set out in the Divorce Act:

To recognize the economic advantages or disadvantages to the spouses arising from the marriage breakdown;
To apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses;
To relieve any economic hardship of the spouses arising from breakdown of the marriage; and
In so far as is practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

In light of these objectives, the Court will consider the condition, means, needs and other circumstances of the spouses in arriving at a reasonable support award.  Relevant facts include:

The length of time that the spouses lived together;
The functions performed by each spouse when they lived together and the effect of this on earning capacity;
Any other source of support for the spouse making the application;
Any obligation of the spouse from whom support is sought to support another person.
Any order, agreement or arrangement relating to the support of either spouse;
The capacity and reasonable prospects of a spouse obtaining retraining; and
The desirability of the applicant spouse having special assistance to achieve financial independence from the supporting spouse.

Spousal misconduct is not relevant to the issue of support with some confusing exceptions as a result of the Supreme Court of Canada decision in Leskun v. Leskun.

It is common for the Courts to order interim or temporary support to ameliorate the effects of the marriage breakdown and to assist one spouse to become self-sufficient.  Temporary support may be ordered, for example, so that a spouse can retrain, upgrade career skills or adapt to a new situation.

Permanent support orders are made in cases where it is unreasonable to expect a spouse to achieve financial independence.  For example, in a long marriage where one spouse remained at home and out of the work force for many years, a time limited support order may be inappropriate.  Similarly, permanent needs-based support may be ordered where, subsequent to a long marriage, a spouse is unable to become financially independent because of disability.

In setting the amount of support, the Courts seek to provide a reasonable standard of living (if means are available), bearing in mind the marital standard of living. Subsequent to long relationships, there may be a greater expectation that the standard of living of the spouses should be equalized.

  SPOUSAL SUPPORT AND SPOUSAL MAINTENANCE

How much post-divorce support should you expect to pay? The Canadian Spousal Support Advisory Guidelines, while not legislated or mandatory, provide a formula for spousal support you can use as a benchmark.

The formula for cases where no child support is involved suggests an annual payment of 1.5% to 2% of the difference between the spouses’ gross incomes for each year of marriage or cohabitation, up to a maximum of 50%. Spousal support is to be paid for a duration of six months to a year for each year of marriage, and is indefinite for marriages of 20 years or longer. Say you were married 10 years, your gross income is $300,000 and your ex-spouse’s is $60,000. To determine your minimum support payment, multiply your income difference ($240,000) by 1.5, then multiply again by 10 (number of years of marriage). The grand total: $36,000 per year. Given the duration of your marriage, you’d be expected to pay this amount for at least five years.
With child support, the formula is based on the combined individual net disposable income (INDI) of both spouses. Add together your and your ex-spouse’s INDIs, then multiply by 40% to 46% of the combined INDI: That’s the amount of support likely to be awarded to the lower-income spouse.

Except as it concerns interim orders, the amount and duration of spousal support is generally decided after division of the marital assets. In some cases, the division of assets may fulfill the four objectives of spousal support (stated above) and there may be no need for further support.

Varying a Support Order
Both the Divorce Act and the Family Law Act require that there be a material change one party's needs, means, financial circumstance, or ability to pay spousal support before the Court can consider an application to vary a support order.

Effect of an existing agreement See Separation Agreements


Tax Implications
Spousal support, unlike child support, may be tax deductible to the paying spouse and taxable in the hands of the receiving spouse but only if paid pursuant to a Court Order or a written agreement signed by both spouses.  Call us immediately to assist you with obtaining documentation that will enable you to obtain tax deductibility.