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We spoke with Paul Slan, family lawyer and Director of Professional Development at Gelman & Associates, about spousal support in Ontario. Please note that the following is not intended to be taken as legal advice, but rather as a general overview on a legal topic. If you are seeking legal advice regarding a spousal support matter in Ontario, we recommend you consult with an Ontario family law lawyer.
What is spousal support in Ontario? What is the purpose of it?
Spousal support is mandated either by virtue of a Separation Agreement or a Court Order. It requires a spouse to pay a monthly amount to their former spouse, or, in some cases, a lump sum amount. The purpose of spousal support is to meet the recipient’s needs and to assist them in becoming self-sufficient over a period of time.
How do you know if you are eligible for spousal support in Ontario?
There is no surefire way of knowing if you are eligible for spousal support, because it is subject to interpretation by a Court. However, there is a recognized basis for entitlement to spousal support. First of all, you have to be a spouse, which means you are either married or formerly married to the individual in question. You can be divorced and still be entitled to spousal support. You may also be eligible for spousal support if you have lived in what is commonly known as a common-law relationship for a period of not less than three (3) years. This does not mean you are entitled, but it does mean you may be eligible.
You may also be eligible if you have lived with your former partner in a common-law relationship of some permanence, with a child. So, if you are not married, but living together and have a child, you do not have to meet the three-year requirement.
Entitlement is a completely separate topic, and it depends on many, many factors, including how long you were together, the roles you adopted during the relationship, whether or not you have children, your relative incomes, your stages in life – there are many, many factors to consider to determine whether you are entitled.
What factors does a Judge take into consideration when determining spousal support in Ontario?
Factors a Judge may consider include the length of the period of the relationship, the parties’ stages in life, whether or not there are children involved, the roles each partner adopted during the marriage, and more. They may consider whether one was a homemaker and one was a wage-earner, or if they were both wage-earners. They may consider the prospects of the dependent person becoming self-sufficient in the future, their skills, their lifestyle they enjoyed during their relationship. There are many factors that a Judge will look at in determining both the entitlement and the amount, and the length of time that spousal payments are to be paid.
Does spousal support also include cohabitating couples?
Yes, spousal support may include cohabitating couples in a common-law relationship. A relationship may be considered common-law if a couple has cohabitated for a period of three (3) years. Or, if they have a child and live together in a relationship of some permanence, they do not have to meet the three-year requirement.
Are there time limits to claim spousal support?
No, there are no time limits on claiming spousal support.
My spouse cheated on me, does that affect spousal support?
No, cheating does not affect spousal support.
How is spousal support calculated?
The starting point for calculating spousal support is what are called the Spousal Support Advisory Guidelines. These are published by the Federal Government, pursuant to the Divorce Act, and they set out variables the parties and their lawyers then have to input. These may include the ages of the parties, the number of children, the length of the relationship, their respective incomes, and so on. The guidelines may then articulate the range of support.
There are low, mid, and high ranges for spousal support, and the amount could fall anywhere within those ranges. The guidelines may also provide a range of time regarding how long the support should be paid, as well a lump-sum amount if the parties choose this route.
If my income has dramatically been reduced, can I decrease my support payments?
You cannot decrease your support payments unilaterally, but yes – any support payment can be reviewed if there is what the law terms “a material change in circumstances.” In a circumstance where someone’s income goes down significantly, without their having caused it to go down, spousal support payments may be reviewed. A material change in circumstances may involve, for example, somebody getting ill, or sustaining injuries in an accident. Likewise, a payor spouse’s retirement may constitute a material change in circumstances. In summary, spousal support orders may be reviewed when circumstances change.
Are support payments taxable income in Canada?
Spousal support payments are taxable to the recipient, and are deductible by the payor. Child support payments are not.
How long do I have to pay spousal support?
How long you may need to pay spousal support depends on the circumstances. The Spousal Support Advisory Guidelines give some direction, but it is a very wide range. It may be indefinite, and may depend on a number of factors. These include the length of marriage or the relationship, the spouses’ ages, their respective incomes, the number of children, the ages of the children, and more. There is no fixed amount of time limit to paying spousal support. Each case depends on its own unique facts.
My former spouse is refusing to make support payments. What can be done?
If there is a Separation Agreement requiring them to make payments, or a Court Order, they can file the Order with the Family Responsibility Office. This is a provincial collection agency run by the Ministry of the Attorney General, which may take steps to collect payments owed. This may include garnishment of wages, seizure of tax refunds – steps that a collection agency would normally take. If there is no Agreement or Court Order, or if there is no voluntary payment, the person may have to start a Court Application.
My former spouse’s income has increased substantially. Can I go to Court to increase the support payments?
A substantial increase in income could be a material change in circumstances. However, this may be a more challenging scenario than a case where the income goes down, because a recipient is not always entitled to share in an increase of the payor’s income. It depends on the circumstances of the marriage.
What will happen if I don’t make my spousal support payments?
First and foremost, you may be chased by the provincial collection agency, which is the Family Responsibility Office. They may garnish your wages, suspend your driver’s license, and take you to Court. Most enforcement is done by that agency.
Can declaring bankruptcy get you out of paying spousal support?
No, declaring bankruptcy will not get you out of paying spousal support.
My ex got re-married. Do I still need to pay spousal support?
If your ex got re-married, your spousal support obligations may depend on whom they married. If their new partner is very wealthy and is supporting your ex spouse, then it may be determined that your ex no longer has need for your support. In such a case, payments may be reduced. If your ex spouse marries somebody with an average income, and can still demonstrate that there is need for support payments, then your support payments may continue.
How long after separation can you claim spousal support in Ontario?
There is no limitation period on claiming spousal support in Ontario. However, the longer you wait, the harder it may be to persuade a Judge that you need it. The argument from the other side will likely be, “My ex has gone so long and hasn’t needed anything – why all of a sudden do they need it now?” The longer you wait, usually the more difficult it can be, but there is no legal limitation.
When is spousal support denied in Ontario?
If a person is self-sufficient and it can be demonstrated that they do not really have a need for support, then it may be determined that this person is not entitled to spousal support. Spousal support may be more likely to be denied if the situation involves younger people, a short-term relationship, and no children.
Is spousal support the same for common-law couples?
Yes, spousal support is the same for common-law couples in Ontario.
If you have more questions, or would like to discuss your particular circumstances regarding spousal support in Ontario, contact us today and book a consultation with one of our family lawyers.
