Spousal support is a monetary payment that one spouse may be required to pay the other after a separation or divorce. It may be paid periodically or, in some circumstances, as a lump sum.
Which partner gets spousal support after a divorce? Either spouse may potentially receive support. Spousal support is not based on gender, and the lower-earning spouse does not automatically qualify simply because there is an income difference.
Instead, the first question is whether that spouse can establish entitlement to spousal support. Entitlement may arise because one spouse experienced economic disadvantage as a result of the relationship or its breakdown, because the other spouse received an economic advantage, because the recipient has financial need, or because an agreement creates a support obligation.
For married spouses, the federal Divorce Act sets out factors and objectives that courts consider when deciding spousal support. Ontario’s Family Law Act can also apply to support claims, including qualifying unmarried spouses.
Key Takeaways About Spousal Support Awards Post-Divorce
- Either spouse may receive spousal support, regardless of gender.
- The lower-earning spouse does not automatically have a right to support.
- Courts first consider whether there is entitlement to spousal support before looking at how much should be paid and for how long.
- Factors can include the spouses’ incomes, financial needs, length of cohabitation, roles during the relationship and economic consequences of the relationship or separation.
- The Spousal Support Advisory Guidelines can help estimate ranges for the amount and duration of support, but they do not create entitlement to support.
- Misconduct such as adultery generally does not determine entitlement to or the amount of spousal support under the Divorce Act.
- Common-law partners may also qualify for spousal support in Ontario if they meet the definition of “spouse” under the Family Law Act.
This article provides general information about Ontario family law and is not legal advice. If you have questions about whether you may have a spousal support entitlement or obligation, consider speaking with a Toronto spousal support lawyer.
Who Is Entitled to Spousal Support in Ontario?
Spousal support is not an automatic right of one spouse or another.
In many cases, support is sought by the lower-earning spouse. However, an income difference alone does not necessarily determine entitlement.
For married spouses, the Divorce Act directs courts to consider the condition, means, needs and other circumstances of each spouse. Relevant considerations include the length of time the spouses lived together, the functions performed by each spouse during the relationship, and any existing agreement or arrangement concerning support.
The objectives of a spousal support order can include:
- recognizing economic advantages or disadvantages arising from the marriage or its breakdown;
- sharing financial consequences associated with caring for children beyond child support obligations;
- relieving economic hardship caused by the breakdown of the marriage; and
- encouraging each spouse to become economically self-sufficient within a reasonable period where practicable.
As a result, the question is not simply which spouse earns less. The circumstances of the relationship and the financial consequences of its breakdown are also important.
Can Either Spouse Receive Spousal Support?
Yes. Spousal support is gender-neutral. A husband, wife or spouse of any gender may potentially be either the payor or recipient.
Historically, support was often discussed in terms of a husband financially supporting a wife. Modern Canadian family law does not operate on that assumption.
Instead, the focus is on the spouses’ financial circumstances, the roles they performed during the relationship, economic disadvantages or advantages arising from the relationship, and other legally relevant factors.
For example, one spouse may have left the workforce or reduced their working hours to care for children. Another spouse may have relocated for their partner’s career or taken on responsibilities that affected their own earning capacity. These circumstances may become relevant when determining entitlement.
Does Spousal Support Apply to Common-Law Partners in Ontario?
Potentially, yes. The federal Divorce Act applies to legally married spouses. However, Ontario’s Family Law Act also provides support rights and obligations for certain unmarried partners.
For support purposes, the Family Law Act generally includes two people who have lived together continuously for at least three years, or who have lived together in a relationship of some permanence and are the parents of a child.
This means that a person does not necessarily have to be legally married to make or face a claim for spousal support in Ontario.
The property rights of unmarried spouses can be different from those of married spouses, so it is important not to assume that all family law rights are identical. If you have questions about your rights in a common law relationship, our marriage and common law lawyers in Toronto may be able to help.
How Is Spousal Support Calculated?
Once entitlement to spousal support has been established, the next questions generally concern amount and duration.
The Spousal Support Advisory Guidelines are commonly used by lawyers and courts to help determine appropriate ranges for spousal support.
The Guidelines are not legislation and are not binding law. However, courts frequently use them, and family lawyers often rely on them when negotiating a separation agreement.
Importantly, the Guidelines generally come into play after entitlement has been established. They do not answer the initial question of whether a spouse is entitled to support.
Calculations can depend on a number of factors, including the spouses’ incomes, length of the relationship, age of the parties, whether there are dependent children and whether child support is also being paid.
How Long Does Spousal Support Last?
There is no single duration that applies to every Ontario separation or divorce.
The Spousal Support Advisory Guidelines generate ranges for both amount and duration. Depending on the circumstances, support may be payable for a defined period or potentially on an indefinite basis subject to future review or variation.
The duration of the relationship can be particularly important. Longer relationships can produce different support ranges than shorter relationships.
Support may also eventually end even where an income difference between the former spouses continues. The Department of Justice’s guidance emphasizes that duration is connected to the continuing basis for entitlement rather than merely to the existence of unequal incomes.
What Factors Affect Spousal Support?
When determining spousal support, a court may consider the condition, means, needs and other circumstances of each spouse.
This can include:
- the length of the marriage or period of cohabitation;
- the roles each spouse performed during the relationship;
- each spouse’s income and financial circumstances;
- the economic consequences of caring for children;
- whether one spouse experienced career or earning disadvantages;
- each spouse’s ability to become financially self-sufficient; and
- any existing agreement relating to spousal support.
Accurate financial disclosure is therefore particularly important when support is being negotiated or litigated.
A party’s particular circumstances will determine what financial documentation is required and how income should be calculated. For separating spouses with businesses, variable income, self-employment or other complex financial arrangements, determining income can require additional analysis.
Does Adultery Affect Spousal Support?
Generally, no. Under the Divorce Act, a court must not take marital misconduct into account when making a spousal support order.
This means that conduct such as adultery does not ordinarily determine whether a spouse receives support or how much support is paid.
The purpose of spousal support is financial. The analysis focuses on factors such as need, economic advantage or disadvantage and the consequences of the marriage and its breakdown rather than assigning blame for why the relationship ended.
Can Spousal Support Change After It Has Been Ordered?
Potentially. Spousal support arrangements may sometimes be changed when circumstances change, although the applicable legal test depends on whether support arises from a court order or an agreement and on the wording of the existing arrangement.
Changes in income, employment, retirement, health, financial need, remarriage or other significant developments may become relevant depending on the circumstances.
A change does not necessarily mean that support will automatically increase, decrease or end. Legal advice can be particularly important before changing payments that are already required by an agreement or court order.
Is Alimony Different From Spousal Support?
The terms are often used to describe the same general concept, but spousal support is the terminology commonly used in Canadian family law.
The word “alimony” is more commonly associated with older terminology or with family law systems outside Canada.
Spousal support is not based on an assumption that a husband must support a wife. Either spouse can potentially receive support where the legal requirements for entitlement are met.
What Happens If Someone Does Not Pay Spousal Support?
When a person is required to pay spousal support under an enforceable court order or agreement, they must comply with those obligations.
Ontario’s Family Responsibility Office can enforce support obligations. Court orders are generally automatically filed with the FRO. A separation agreement must be filed with a court and registered with the FRO before the agency can enforce it.
Depending on the circumstances, enforcement measures can include garnishing income or bank accounts, placing liens on property, suspending a driver’s licence, and seeking suspension of certain federal licences or a passport.
If it is safe and appropriate, the recipient may first attempt to discuss missed payments with the former spouse. If the issue cannot be resolved, legal advice or assistance from the FRO may be appropriate.
Similar enforcement mechanisms can apply to unpaid child support.
Can Spousal Support Be Denied?
Yes, depending on the circumstances. Entitlement to spousal support is not automatic at the end of every marriage or qualifying common-law relationship.
A claim may not succeed if the spouse seeking support cannot establish a recognized basis for entitlement. For example, the circumstances may not demonstrate compensatory disadvantage, financial need or another basis for support.
A domestic contract, such as a valid prenuptial agreement or marriage contract, may also address spousal support. Whether a support waiver or limitation will ultimately be enforced depends on the circumstances and applicable family law principles.
The length of the relationship and each spouse’s earning capacity can also be important. In some short marriages, for example, the facts may not support the same type or duration of support that might arise after a lengthy marriage.
Frequently Asked Questions About Spousal Support in Ontario
Does the Wife Always Get Spousal Support After Divorce?
No. Spousal support is not automatically paid to a wife, and gender does not determine entitlement.
Either spouse may potentially receive support. The court considers financial circumstances, the relationship and its economic consequences.
Does the Lower-Earning Spouse Automatically Get Spousal Support?
No. A difference in income can be relevant, but income disparity by itself does not automatically establish entitlement. The spouse seeking support must first establish a legal basis for receiving it.
Can a Husband Receive Spousal Support From His Wife?
Yes. Ontario and Canadian spousal support laws are gender-neutral. A husband may receive support from his wife if he establishes entitlement and the circumstances support an award.
Is Spousal Support Automatic After a Long Marriage?
No, not necessarily. The length of the relationship is an important consideration, and longer relationships can have a significant effect on the support analysis. However, entitlement still needs to be established based on the applicable legal principles.
Can You Receive Both Child Support and Spousal Support?
Yes. Child support and spousal support are separate obligations, and it is possible for both to be payable.
The existence and amount of child support can, however, affect the calculation of spousal support under the Spousal Support Advisory Guidelines.
Does Cheating Stop Someone From Getting Spousal Support?
Generally, no. The Divorce Act states that marital misconduct is not to be considered when a court makes a spousal support order.
Is Spousal Support Always Permanent?
No. Support can be payable for a definite or indefinite period depending on the circumstances. The Divorce Act expressly permits courts to make support orders for a definite or indefinite period or until a specified event occurs.
Speak With a Toronto Spousal Support Lawyer About Entitlement Today
Determining which spouse may receive support requires more than simply comparing two incomes. Entitlement, amount and duration are distinct questions, and the answer can depend on the length of the relationship, each spouse’s financial circumstances, parenting responsibilities, career sacrifices and other factors.
If you are seeking spousal support, have been asked to pay it, or have questions about changing an existing support arrangement, Gelman & Associates can help you understand how Ontario family law applies to your circumstances.
Contact Gelman & Associates or call 1-844-736-0200 to book a consultation with a Toronto spousal support lawyer.
Disclaimer: This article provides general information about spousal support and family law in Ontario. It is not intended to provide legal advice. For advice about your particular circumstances, consult with a family law lawyer.
