Spousal support is a monetary payment that one spouse may be ordered to pay the other for their financial support at the end of a marriage or relationship involving long-term cohabitation. The payment may be either a lump sum or periodic payments and it is generally sought by the lower-earning spouse – although it is not an automatic right of one spouse or another. However, if a spouse can demonstrate that they have either a financial need that arose from the marriage or its breakdown, entitlement to compensation because of the marriage, or a contract between themselves and their spouse that includes a support obligation, they may be entitled to spousal support.
The Divorce Act, which governs only legally married couples, sets out the main purposes of spousal support to be:
- To compensate a spouse who sacrificed his or her ability to earn income during the marriage;
- To compensate a spouse for the ongoing care of children (over and above child support payments); and
- To help a spouse who is in financial need as a result of the breakdown of the marriage.
Understanding Spousal Support
It is best for all involved if a separating couple can agree on whether spousal support is appropriate and how much and for how long it should be paid. If they cannot agree, a court will decide for them based on a number of factors.
The Divorce Act states that when a Court is considering an award of spousal support, they must consider the condition, means, needs and other circumstances of each spouse. This consideration should include the length of the cohabitation, the functions each spouse performed during the relationship, the age of the spouses at the time of separation, the ability of one spouse to support the other, the ability of the recipient spouse to support themselves as well as any orders or agreements about the support of one spouse.
How Spousal Support is Calculated
There are Spousal Support Advisory Guidelines that provide direction for a court in making a determination about a support order or a couple negotiating a separation agreement to calculate how much and for how long spousal support should be awarded. It is a complex equation and it takes into account the fact that one spouse may have suffered a financial disadvantage during the relationship – perhaps as a result of relocating for the benefit of their partner’s job or choosing to give up working for a period of time to stay at home and care for children.
The Spousal Support Advisory Guidelines, while not binding, have established that along with the length of the marriage or cohabitation and the ages of the parties, income should be the baseline from which spousal support payments are calculated. The Ontario Family Law Rules (if the matter is in court) along with the statute and legislation of the Divorce Act and the Family Law Act provide a structure around the documentation that is to be used to calculate each spouse’s income. A party’s particular situation will dictate how they must make their financial statements and calculate their income, therefore, it is critical that separating spouses get competent legal advice to help them understand the Rules and Guidelines and thus what their obligations or entitlements may be.
Factors Affecting Spousal Support
The conduct of the spouses has no bearing on entitlement to spousal support or on the amount awarded. Even if the party seeking support committed adultery or was violent towards their spouse, they may still be entitled to support.
The amount of spousal support is subject to change in the event of a significant change in the financial circumstances of either party. This change in circumstance must be significant, of a continuing nature and cannot be something that was foreseeable at the time of the separation agreement or court order. This type of change is commonly sought if the paying spouse has lost their job, remarried, or taken on new financial responsibilities.
Is Alimony Different From Spousal Support?
Alimony and spousal support are terms that are commonly used interchangeably. Alimony is an outdated term that connotes a husband supporting a wife for an indefinite period of time. However, the reality is that either spouse may be entitled to spousal support based on the factors previously discussed. Spousal support is focused on income and earning potential rather than gender. This entitlement is not automatic and must be demonstrated based on the circumstances surrounding the relationship and that of the spouses individually. Further, spousal support is generally awarded for a finite period.
What Happens When a Person Doesn’t Pay Spousal Support
When a party is ordered to pay spousal support, he or she must, by law, comply with the order. If they choose not to obey an order for spousal support, there are mechanisms in place to enforce the order. If you are seeking payments from your spouse, your first course of action is to speak to your former spouse about it if you can safely do so. If you cannot get your spouse to comply, you may turn to the courts or to the Family Responsibility Office to enforce the spousal support terms of the agreement or court order.
If a person who is ordered to pay spousal support is entitled to payments from the federal government, the government may take that money and use it to pay their support obligations. This could be payments from a tax refund or employment insurance benefits, income the spouse earns as a federal contractor or federal pension payments.
Further the Family Responsibility Office may request the denial or suspension of the payor spouse’s Canadian passport or certain federal marine and aviation licenses for failure to make support payments.
It should further be noted that there are enforcement mechanisms for a spouse who refuses to make their child support payments as well.
Can Spousal Support Be Denied?
As noted previously, entitlement to spousal support is not an automatic right by one spouse at the end of a marriage or relationship (for non-married spouses). Spousal support may be denied because neither spouse can demonstrate a financial need that arose from the marriage or its end or there was a prenuptial agreement that prevents one spouse from asking for support from the other. Further, an application for spousal support may be denied if neither spouse is in a financially vulnerable position or if both spouses are in such a financially vulnerable position that they will be unable to meet their own basic needs if they are required to make spousal support payments.
Spousal support may also be denied if the lower earning spouse has excellent earning capacity or the marriage was so short in duration and the spouse seeking support made no financial concessions during the marriage.
Remember that fault does not play a role in the award of spousal support payments, thus allegations of adultery or abuse will not be a factor in either the award or denial of spousal support.
What Can You Do When Spousal Support is Denied
If you are seeking spousal support, you should seek the assistance of experienced family lawyers like those at Gelman & Associates. Our talented lawyers can help assist you in making sure that both parties financial disclosure documents are accurate for income calculation purposes and that your application includes a request based on Spousal Support Advisory Guidelines and that all exceptions to the guidelines have been considered when an intuitively “wrong” outcome is reached.
If your former partner is appealing the denial of spousal support or the amount awarded, you should similarly reach out to a family lawyer to ensure that you are taking the appropriate steps to defend your rights. If you find yourself in a position of conflict of spousal support payments, contact the lawyers of Gelman & Associates to discuss your case. With offices in Aurora, Barrie, Mississauga, North York, Scarborough, and Toronto, we are available to meet your needs wherever you are.
Don’t be caught unawares when it comes to your rights to spousal support. Contact Gelman Law for more information.
